Shibley, Craig v. Central Mass Emergency Medical Systems Corporation (SPR 20150789)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 15, 2015 SPRlS/789 Mr. Edward McNamara Central Mass EMS Corporation 361 Holden Street Holden, MA 01520 Dear Mr. McNamara: I have received the petition of Craig Shibley appealing the response of the Central Massachusetts Emergency Medical Systems Corp. (CMEMSC) to his request for public records. G. L. c. 66 § 1 O(b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Shibley requested to view seven (7) categories of records. In a response dated September 29, 2015, CMEMSC provided Mr. Shibley with a fee estimate for the provision of records it is willing to provide. You claim other responsive documents are exempt from disclosure pursuant to several exemptions to the Public Records Law without providing statutory citations to them. 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 CMEMSC responded to this request by citing exemptions and other provisions of the Public Records Law, I will opine on whether CMEMSC complied with the Public Records Law and its Access Regulations (Regulations). Fee estimate In the September 29 letter, you indicate, "the cost to produce these items is $39.47, accounting for searching, redacting, photocopying andre-filing responsive documents." CMEMSC 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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Edward McNamara SPR15/789 Page Two December 15, 20 15 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 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 written, good faith estimate must include detail regarding the above requirements. However, the fee estimate in the September 29letter 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). 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. In the September 29 letter, you state "[t]he remaining requests are overly broad and encompass documents and information exempt from disclosure under the Public Records Law. .. ." CMEMSC cites various exemptions in its September 29letter; however, CMEMSC does not provide the statutory citations to these exemptions, nor does it provide the requisite specificity to withhold records under any of the exemptions cited. Conclusion Accordingly, whereas CMEMSC has not overcome the presumption that the requested records are public, CMEMSC is hereby ordered to allow Mr. Shibley to view the responsive

Mr. Edward McNamara SPR15/789 Page Three December 15, 2015 records at a mutually agreeable time and location. If CMEMSC 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, § 1O (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). Once the fees are paid, you must provide the responsive records. cc: Mr. Craig Shibley Mr. Douglas T. Radigan, Esq.