Patrick Higgins v. Swansea, Town of - Recreation Commission (SPR 20160046)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Shawn A. Williams Supervisor of Records

February 18, 2016 SPR16/046; 16/073

Mr. Derek W. Heim

Chairman

Swansea Recreation Commission PO Box 161

Swansea, MA 02777

Dear Mr. Heim:

I have received the petition of Patrick Higgins appealing the responses of the Town of Swansea — Recreation Commission (Commission) to a request for public records. G. L. c. 66 §

10(b); see also 950 C.M.R. 32.08(2). On December 28, 2015, Mr. Higgins requested to inspect the following records:

1. All resumes and/or applications for the Recreation Coordinator position which is on the agenda for interviews on October 21, 2014 (Request 1);

2. All invoices, minutes, executive session minutes, agendas, applications for employment

(Request 2);

All contracts by and between the Recreation Commission and any entity (Request 3);

4, All emails sent to or received at any of the three (3) Commission email addresses (Request 4);

5. Ledgers regarding the payments received by any person who registered their child to

attend the unlicensed summer day camp a/k/a Summer program for all dates after January 1, 2013 to present (Request 5).

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Related appeal

Mr. Higgins made a similar request to the Commission on October 29, 2015. The Commission provided a response to this request on November 6, 2015, which Mr. Higgins appealed. See SPR16/073. This request and response appear to be similar to Requests 1-5 described above. As a result, I will address both appeals in this determination.

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

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Mr. Derek W. Heim SPR16/046; 16/073 Page 2 February 18, 2016

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).

Records in existence

In a written response dated December 30, 2015, you informed Mr. Higgins that “[i]n regards to all public records, you can arrange a time to inspect all of these records through communication with the Town Clerk’s office as well, as these are a matter of public record and are located within the Town Clerk’s files and are reflected in meeting minutes.” In the November 6 response, you inform Mr. Higgins that he should arrange a time with the Town Clerk to inspect responsive records.

In this response it is unclear whether the Commission intends to withhold records or whether all responsive records would be made available. If the Commission is withholding records it must state with specificity how an exemption to the Public Records Law applies to

each record. See G. L. c. 66, § 10(c). Further, the Commission must explain whether responsive records actually exist.

Exemption (e)

The Commission informed Mr. Higgins that certain responsive records would be

withheld from disclosure pursuant to Exemption (e) of the Public Records Law. Exemption (e) applies to:

notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit

G. L. c. 4, §7 (26)

The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption.

The first criterion of Exemption (e) limits its application to work related records that can be characterized as “personal” to the employee, such as notes created to refresh an employee’s memory of a work related activity or notes created by an employee to assist in preparing reports

Mr. Derek W. Heim SPR16/046; 16/073 Page 3 February 18, 2016

for other employees of the governmental entity. Notes that have been shared by the employee may not be considered to be “personal” pursuant to Exemption (e).

The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, “files of the governmental unit” excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and a records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file.

In its November 6 response, the Commission indicates “any and all emails sent to, or sent from any of the commissioners[’s] personal addresses at any time in 2013, 2014, and 2015” would be withheld under Exemption (e) of the Public Records Law. G. L. c. 4, § 7(26)(e). Clearly, emails would consist of communications between more than one person and, therefore, may not be withheld pursuant to Exemption (e) of the Public Records Law as email correspondence is not considered personal notes.

Fees

The Commission provided fee estimates for the provision of records responsive to Request 4 and Request 5. 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 ($10.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of twenty cents ($.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 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 total fee estimate for records responsive to Request 4 is $174.00. This fee consists of $144.00 (eight (8) hours at $18.00 an hour) for a Commission clerk to prepare the records and $30.00 for a storage device. The total fee estimate for the provision of Request 5 is $270.00.

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This fee consists of $240.00 (eight (8) hours at $30.00 an hour) for the Treasurer to prepare the records and $30.00 for a storage device.

In a February 5, 2016 conversation with a member of my staff you mentioned that both the Town Clerk and Town Treasurer were “volunteers.” However, the response does not provide any explanation to justify either the eight (8) hours of review or the estimated hourly rates

-hecessary for the Town Clerk and Town Treasurer to compile and prepare the responsive records.

Further, I find the cost of the two (2) storage devices to be unreasonable because the Commission does not explain whether this is the actual cost of these items. See G. L. c. 66, § 10(a). In addition, Mr. Higgins’ request was to inspect the responsive records so it is unclear why storage devices are necessary, as this is not responsive to Mr. Higgins’ request. As a result, I find the Commission has failed to meet its burden to provide a compliant fee estimate.

Executive session agendas and minutes

In its November 6 and December 30 responses, the Commission denied Mr. Higgins’ request for executive session agendas and minutes, stating “at this time these records have not been deemed public record. . . .” This response potentially invokes the Open Meeting Law. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination as to the status of same. See G. L. c. 30A, § 23. It is recommended that you contact the AGO should you seek a determination on this issue. I have copied the AGO’s Director of the Division of Open Government on this letter.

Conclusion

For the reasons discussed above, I find the Commission has failed to properly respond to a request for public records. The Commission is hereby ordered, within ten (10) days, to provide Mr. Higgins with a response provided in a manner consistent with this order, the Public Records Law, and its Regulations. This response must address each portion of Mr. Higgins’ October 29 and December 28 requests, contain a statement as to records previously provided, and a statement to address remaining records to be provided.

If the Commission maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Mr. Higgins 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.

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If there are any fees associated with this response a written, good faith estimate must be provided. 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). Once the fees are paid, you must provide the responsive records.

To assist the Commission in responding to requests for public records I have enclosed a copy of our publication, A Guide to the Massachusetts Public Records Law. This document is also available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public;Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information.

érvisor of Records Enclosure

ce: Mr. Patrick Higgins Ms. Amy Nable, Esq., Director of the Division of Open Government