Patrick Higgins v. Swansea, Town of - Town Administrator (SPR 20160169)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 17, 2016 SPR16/169 Mr. John McAuliffe Town Administrator Town Hall 81 Main Street Swansea, MA 02777 Dear Mr. McAuliffe: I have received the petition of Patrick Higgins appealing the response of the Town of Swansea (Town) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Higgins requested an opportunity to review and make his own copies of all emails sent or received by a specifically identified Select Board member from April 2007 to the present. In a response dated March 7, 2016 the Town provided Mr. Higgins a fee estimate for the provision of records responsive to his request. The basis of Mr. Biggins's appeal is the reasonableness of the fee estimate. Fees 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 ($10.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the current Regulations, a custodian of records may assess a maximum_je_e__nf_ji-"-"------- cents ($. 05) per page for a black and white single or double-sided photocopy 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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. John McAuliffe SPR16/169 Page 2 March 17, 2016 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, § 1O (a). Fees for Copies The Town's fee estimate included a fee for 100 copies at fifty cents ($.50) per page. Mr. Higgins requested an opportunity to review and copy emails. Mr. Higgins indicated that he is not interested in obtaining printed copies; he intends to bring his own camera and take copies of any and all documents for free at the time of review. Please be advised that the Town cannot charge a fee for copies when allowing a requester to simply review public records. 950 C.M.R 32.06(4). If Mr. Higgins determines that he wishes to obtain copies of any of the responsive records that he reviews, the Town may assess a maximum fee of five cents ($.05) per page. See 950 C.M.R. 32.06(1)(a). Given that the native format of email is electronic, Mr. Higgins may request 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. The Town may charge the actual cost of any storage device. 950 C.M.R. 32.06(1)(a). If it is necessary to print out hard copies of records for the purpose of redacting exempt material, the Town may charge five cents ($.05) per page only for copies of records that Mr. Higgins chooses to take. Accordingly, I find that the Town must revise the fee for copies. Search & Segregation The Town's fee estimate contained a four (4) hour search and segregation fee at what appears to be the Town Manager's hourly rate of $68.23. The Town also indicated that should it be necessary for legal counsel to review any of the responsive records Mr. Higgins would be billed at the hourly rate of $125.00 per hour. The Town also provided that if an IT consultant were required to retrieve responsive records from archives he would be billed for their time at $95.00 er hour. "Search time" means the time needed to locate, pull from the files, copy andre-shelve or refile a public record. "Segregation time" means the time used to delete or expurgate data which is exempt under M.G.L. c. 4, § 7, clause Twenty-sixth from non-exempt material which is contained in a paper public record. 950 C.M.R. 32.03. There is no provision in the Public Records Law or its Regulations that mandates segregation to be performed by the Town Administrator or an attorney, nor is there any provision for IT consultant fees for retrieving responsive records from archives. The Regulations mandate that "Search and Segregation"

Mr. John McAuliffe SPR16/169 Page 3 March 17, 2016 expenses must be assessed at the lowest hourly rate of the individual capable of performing the task. 950 C.M.R. 32.06(1)(c). Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 289-90 (1979). Each municipal or governmental entity or agency shall have a designated "records custodian." The town clerk shall serve as records custodian unless a particular board or committee appoints an individual who shall be in charge of maintaining, storing and keeping the public records of such agency or entity by local by-law or ordinance. G. L. c. 66, § 7. Whenever original public records are created outside the municipal offices, they shall be transferred on a regular and frequent basis to secure storage in the municipal building. 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 responding to a public records request. 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. Given that the Town Clerk is statutorily designated as the custodian of the requested records the fee for search or segregation should be based on the hourly rate of the lowest paid employee at the Clerk's office who is capable of performing the task. The Town's response also fails to justify why it should take four (4) hours to search for and segregate exempt information from the responsive records. Accordingly, I find that the Town must revise the portion of the fee estimate associated with assessed hourly rates for segregation of public records. Exemptions ________ ____A'he_I_Qwn is hereby_affirised_that_shOJlld it intend_ton!dactnr-:w:iibhold any informatl~·oJJdnt-------­ contained in the responsive records that 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); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) Accordingly, to comply with the Public Records Law and its Regulations the Town must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records.

Mr. John McAuliffe SPR16/169 Page 4 March 17, 2016 Order Accordingly, the Town is hereby ordered to provide Mr. Higgins with a revised written, good faith estimate consistent with the Public Records Law, the Regulations and this determination for the cost of complying with his request. Upon payment ofthe fee, you are hereby ordered to provide the records in a timely manner. To assist in requesting and responding to requests for public records please refer to 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 eneral questions regarding the Public Records Law. In addition, members of my staff will visit a ecords custodian in person to conduct training workshops on the Public Records L u o request. Please contact my office directly at the telephone number provided in this dete m1 n for further information. cc: Mr. Patrick Higgins