Shibley, Craig v. Western Massachusetts Emergency Medical Services (SPR 20150689)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords December 15, 2015 SPRlS/689 Ms. Linda Moriarty Executive Director Western Massachusetts Emergency Medical Services Committee Inc. 168 Industrial Drive Northampton, MA 01060-2327 Dear Director Moriarty: I have received the petition of Craig Shibley appealing the response of the Western Mass Emergency Medical Service Committee, Inc. (WMEMS) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Shibley requested to view various WMEMS records pertaining to four (4) ambulance services within the jurisdiction ofWMEMS. As discussed in multiple correspondence between Mr. Shibley and WMEMS, he is seeking to view the "complete file including all documentation required under 105 [C.M.R] 170.000" related to four (4) ambulance service entities. -- ------ ---------- - ------------ln-a-l"e£.pGn£.e-dated-Aug.u.s.t-2S,20-1-5-y:G-~J-S.tate-"-WMEMS-is-nG.t-a-pub-l-iG-Igntit.:y-<'llld-a~---­ such is not subject to the Public Records Law." You indicate that despite this position, "WMEMS is willing to comply with your request to the extent outlined herein." WMEMS provided Mr. Shibley with aJee estimate for the provision of records it is willing to provide, but claimed other responsive documents are exempt from disclosure pursuant to several exemptions to the Public Records Law including Exemption (b), Exemption (c), and Exemption (g). G. L. c. 4, § 7(26)(b), (c), (g). Despite the position that WMEMS is not subject to the Public Records Law, you advise Mr. Shibley that he has the "right to seek redress through the administrative process provided by the Supervisor of Public Records." Mr. Shibley appealed this response. In his petition, Mr. Shibley informed this office that he withdraws his request with respect to items referred to as "request numbers two (2) and three (3)" in the August 28 letter. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Linda Moriarty SPR15/689 Page Two December 15, 2015 Public entity under the Public Records Law Only the Supervisor of Records, the Superior Court, and the Supreme Judicial Court have the authority to determine the scope of the Public Records Law. See Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609, 614-15 (1993). Whereas WMEMS responded to this request by citing exemptions and other provisions of the Public Records Law, I will opine on whether WMEMS complied with the Public Records Law and its Access Regulations (Regulations). Fee estimate In the August 28 letter, you indicate "[a]s required by Massachusetts law, I am providing you with a good faith estimate of the cost of searching for, copying, and segregation time for the numerous records you have requested." You state "[i]t is anticipated that it will cost approximately $130.00 ... to comply with your request." WMEMS is advised that absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Regulations. See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of twenty cents ($.20) per page for a photocopy of a public record and fifty cents ($.50) per page for a computer printout 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 -----e:x-empt-ffeiR-Ren-ex-empt-materi-al-;-958-G.M-;-lt-3-~83-;-'Fhe-search-andsegregation-feesmust-------­ reflect the actual cost of complying with a particular request. G. L. c. 66, § 10(a). The written, good faith estimate must include detail regarding the above requirements. However, the fee estimate in the August 28 letter provides no detail regarding the amount of search and/or segregation time or the hourly rate of the employee performing the task. In addition, the fee estimate must reflect the fact that Mr. Shibley's request was to view the responsive records. Exemption claims 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). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26).

Ms. Linda Moriarty SPR15/689 Page Three December 15, 2015 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10 ( c); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. WMEMS cites various exemptions in its August 28 letter; however, WMEMS does not provide the requisite specificity to withhold records under any of the exemptions cited. In addition, with respect to the item referred to as request one (1) in the August 28 letter, WMEMS is advised that a custodian is expected to use her superior knowledge of the records in his custody to assist the requester in obtaining the desired information. See 950 C.M.R. 32.05(4 ). Conclusion Accordingly, whereas WMEMS has not overcome the presumption that the requested records are public, WMEMS is hereby ordered to allow Mr. Shibley to view the responsive records at a mutually agreeable time and location. If WMEMS maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Shibley a written explanation, with specificity, how a particular exemption applies to each record. To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. A copy of any such response 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. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a . requestJor public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. cc: Mr. Craig Shibley Ms. Lindsay D. DiSantis, Esq.