Lake, Scott v. Dartmouth, Town of - Town Administrator (SPR 20150580)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 7, 2015 SPRlS/580 Mr. Brian J. Cruise, Esq. Savastano Law Firm, P.C. The Joseph Arthur Beauvais House 404 County Street New Bedford, MA 02740-4936 Dear Attorney Cruise: I have received the petition of Scott Lake appealing the response of the Town of Dartmouth (Town) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Lake requested access to and a copy of four ( 4) categories of records related to a specifically identified Town employee. Melissa Medeiros, Personnel Administrator for the Town provided Mr. Lake with an initial written response, eighteen (18) days after Mr. Lake's request, and only after Mr. Lake sent a follow-up request. Three (3) months after the request, as the Town's Legal Counsel you provided Mr. Lake with a response and fee estimate of $2,160.34 to obtain the records. Mr. Lake appealed this response. Both you and this office attempted to speak by telephone regarding this appeal in recent days but attempts by both sides were unsuccessful. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (1 0) days ofthe request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate, a denial, or a response that there are no records responsive to the request. The Town is advised that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. Brian J. Cruise, Esq. SPR15/580 Page Two December 7, 2015 Fee estimate A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Regulations. See 950 C.M.R. 32.06 (fees for public records) The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(4). Under the Regulations, a custodian of records may assess a maximum fee of twenty cents ($.20) per page for a photocopy of a public record and fifty cents ($.50) per page for a computer print-out of a public record. See 950 C.M.R. 32.06(1)(a). In addition to the copying fee, the Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1 )(c). The Regulations define "search time" as the time needed to locate, pull from the file, copy and refile public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § 10(a). The February 4, 2015 estimate sent to Mr. Lake states that the total cost ofreviewing, segregating, redacting and copying the documents to be produced is $2,160.34, however the Town did not provide a breakdown ofthe total cost providing the number of hours needed to search and segregate records, the hourly rate of the person performing the work, or the number of copies Mr. Lake should expect to receive should he pay the estimated fee. Missing record The Town's November 25 letter states that, "after extensive review ofthe Select Board's files," at least one responsive record has not been located. A custodian of records has an affirmative duty to maintain records made or received in the normal course of his or her duties; however, it has not been determined what retention period would apply to the missing record. To assist the Town in meeting its records management obligations I will provide with this letter a copy of the Municipal Records Retention Manual, also available online at www.sec.state.ma.us/arc/arcrmu/rmuidx.htm. Order Accordingly, the Town is hereby ordered, within ten (10) days ofthis order, to provide Mr. Lake with a revised written, good faith estimate to support the fees associated with his request for public records. A copy of the detailed written, good faith estimate and any response

Mr. Brian J. Cruise, Esq. SPR15/580 Page Three December 7, 2015 that accompanies the records must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Once Mr. Lake pays the fees, the Town must provide Mr. Lake with the responsive records. If the Town maintains that any portion of the responsive records are exempt from disclosure it must provide Mr. Lake with a written explanation, with specificity, how a particular exemption applies to each record, or each portion of a redacted record. To meet the specificity requirement a custodian must not only cite an exemption, but m st also state why the exemption applies to the withheld or redacted portion of the respons · e r rd. Enclosure cc: Mr. Scott A. Lake