Tammy Serata v. Marshfield, Town of - Town Counsel (SPR 20160132)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 11, 2016 SPR16/130, SPR16/131, SPR16/132, SPR16/133, SPR16/134, SPR16/135, SPR16/136, SPR16/137 and SPR16/138 Mr. Robert W. Galvin, Esq. Town of Marshfield Town Counsel Galvin & Galvin, P.C. 10 Enterprise Street, Suite 3 Duxbury, MA 02332-3315 Dear Attorney Galvin: I have received the petition of Tammy Serata appealing the response of Town of Marshfield (Town) to her requests for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Serata requested various paper and electronic records related to the Peter Igo Park. Whereas Ms. Serata sent nine (9) separate public records requests to Town Departments, such as Community Preservation Committee (SPR16/130), Department of Public Works (SPR16/131), Town's Legal Counsel (SPR16/132), Town Administrator (SPR16/133), Department ofRecreation (SPR16/134), Zoning Board of Appeals (SPR16/135), and the Board of Selectmen (SPR16/136, SPR16!137 and SPR16/138); I have consolidated these nine (9) appeals into one written determination. Failure to provide timely response and provide records The Zoning Board of Appeals (16/13 7) and Board of Selectmen members, Michael Bradley, Matthew McDonough and Stephen Robbins (SPR16/136, SPR16/137 and SPR16/138) have failed to respond to the Ms. Serata's December 14 and 15, 2015 public records requests. The Department of Recreation (16/134) has also failed to provide Ms. Serata with access to review the contract between the Town and the Marshfield Tennis Club (Club) for management of the Peter Igo Park (Park) and/or the contract that the Club has to manage the Park, which was requested on January 17, 20 and 26, 2016. The Department of Recreation is ordered to provide Ms. Serata with the existing contract in response to her January requests. 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 of the request. G. L. c. 66, § OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Robert W. Galvin, Esq. SPR16/130-SPR16/13 8 Page 2 March 11, 2016 10(b); 950 C.M.R. 32.05. The ten-day provision is a maximum, rather than a minimum, time frame for complying with a public records request. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. Fees for search and segregation ofp ublic records A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 1 O(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). 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 andre-file 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 costs for search and/or segregation must reflect the actual cost of complying with a particular request. G. L. c. 66, § 10 ( a). The Town may charge for searching for records, including the time necessary to copy and re-file paper records; however there is no provision in the Regulations that permits the Town to charge for "identifying and listing documents, and preparing the fee estimate." Please be advised, responding to public records requests is part of the day-to-day business of the Town, and a requester cannot be charged for the duties that must be carried out in the normal course of drafting a response or written estimate in responding to a public records request. The amount of search time allocated in your estimate for "identifying, listing documents and preparing the fee estimate" must be eliminated from Town estimates, and revised estimates must be drafted and provided to Ms. Serata. Written, good faith fee estimates As Legal Counsel to the Town, you provided written, good faith fee estimates for the Office ofthe Town Counsel, Community Preservation (Preservation), Department of Public Works (DPW) and the Office of the Town Administrator. If there are any fees associated with responding to a public records request, 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).

Mr. Robert W. Galvin, Esq. SPR16/130-SPR16/13 8 Page 3 March 11, 2016 Hourly rates for search and segregation ofp ublic records The estimates are based on search time by the lowest paid administrative assistant's rates of$15.99 in Preservation, $25.46 in DPW and $26.64 in the Office of the Town Administrator. Whereas, the administrative assistant's hourly rates are the lowest paid individuals within those Town departments, I find the hourly rates regarding the requests for records of Preservation, DPW and the Office of the Town Administrator reasonable and in compliance with the Regulations. However, your estimates for possible "segregation/redaction" of records assessed at your hourly rate of one hundred thirty-five ($135.00) dollars per hour, as Town Counsel, are not reasonable. The Regulations mandate that "Segregation time," which is the time it takes to redact exemption data or information from the content of a record must be assessed at the lowest hourly rate of the individual capable of performing the segregation/redactions. There is no provision in the Public Records Law or its Regulations that mandates segregation to be performed by an attorney. In most cases, and with some guidance, a much lower paid employee is capable of segregating/redacting exempt data from a record. A records custodian must justify why a particular individual at a higher hourly rate is the only individual who can perform the task of segregation. Whether it is reasonable that a higher paid individual where the records are normally located is the only person capable of performing the task is determined on a case-by case basis. Therefore, I find that the Town has not met its burden of proving that the Town's Legal Counsel is the only individual capable of segregating exempt data from the records. I find that the Town must revise the hourly rate for segregation. Number of hours-search time The estimates provided to Ms. Serata assess a minimum of hours for "search time," range from one (1) hour to (20) hours, if Ms. Serata is provided with photocopies versus reviewing the records at Town Hall or your office (Office of the Town Counsel). The number of hours for search time is minimal with regard to photocopies of records from Preservation, the Town Administrator and the Office of the Town Counsel. The Town has not supported the twenty (20) hours of search time estimated for records of the DPW. Additionally, Ms. Serata was assessed for the amount of time to "identify the documents, list the documents and prepare an estimate," and the amount of time that was assessed for these tasks must be removed from the estimate and the estimate reduced.

Mr. Robert W. Galvin, Esq. SPR16/130-SPR16/138 Page4 March 11, 2016 Records must be provided in native format if available and requested in that form The written estimates provided give Ms. Serata the option of receiving copies of records or allowing Ms. Serata to make an appointment at the Town Hall or at your office to review the records, only paying for the time to search for the records and any segregation time that is necessary to redact exempt material prior to Ms. Serata's review of the records. I commend the Town in offering Ms. Serata the option to reduce the costs. However, in her requests, Ms. Serata also requested that the records be produced in electronic format, such as saved onto an electronic media storage unit, for example a compact disc or thumb drive, rather than produce paper copies. I advise the Town that any records that are naturally in electronic or computerized format, such as emails or other computer-based records, must be provided in native format if so requested. Therefore, I find that the Town must provide Ms. Serata with an estimate to obtain the records in electronic format to the extent records are available in that form. Order I find the Town and Town Counsel have failed to properly respond to nine (9) separate public records requests, and that the Town has not met its burden of supporting the DPW assessment of twenty (20) hours of search for records, the assessment of an attorney's hourly rate for reviewing and segregating data from responsive records, and has mistakenly assessed search time for "identifying and listing documents, and preparing an estimate." Accordingly, the Town is hereby ordered, within ten (1 0) days of this order, to provide Ms. Serata with a written response for her requests to the Zoning Board of Appeals and the Board of Selectmen, and with revised, written good faith estimates for all her requests, prepared in a manner consistent with this order, the Public Records Law and its Regulations. Once Ms. Serata pays the estimate(s), the Town must provide the records or provide an opportunity for her to review the records if she chooses. If the Town maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Ms. Serata a written explanation, with specificity, how a particular exemption applies to each record or each portion of a 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. To assist the City in responding to requests for public records, I advise the Town to review our publication, A Guide to the Massachusetts Public Records Law. This document is 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

Mr. Robert W. Galvin, Esq. SPR16/130-SPR16/138 Page 5 March 11, 2016 custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number belo for further information. urs, cc: Ms. Tammy Serata Mr. Rocco Longo, Town Administrator