Patrick Higgins v. Swansea, Town of - Town Administrator (SPR 20160194)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 29, 2016 SPR16/194 Mr. John McAuliffe Town of Swansea- Town Administrator 81 Main Street Swansea, MA 02777 Dear Mr. McAuliffe: I have received the petition of Patrick Higgins appealing the March 21, 2016 response of the Town of Swansea- Town Administrator (Town) to a March 10, 2016 request for public records. G. L. c. 66 § 1 O(b ); see also 950 C.M.R. 32.08(2). Mr. Higgins is appealing your response made on March 21, 2016 pertaining to his March 10, 2016 request for public records. Specifically, Mr. Higgins requested "a date and time be set for [Mr. Higgins] to inspect all emails sent to or received by [a former Town Selectman at his personal email address] during his term of office as a selectman, which he was required to give to the town upon his termination of being an elected selectman pursuant to the provisions of Chapter 66, section 14." Mr. Higgins also requested "a date and time to inspect and copy and all Executive Session agendas and minutes from Jan 1, 2013 to the present." In this request Mr. Higgins made clear his wish to only view and inspect, rather than copy, the requested records. Response by the Town; appeal In your March 21, 2016 letter you provided a fee estimate for "clerical time, which is currently the hourly rate of $18.87 per hour" to review the responsive emails that "are in the town's possession." Your estimate also indicated an "unknown" fee for copy charges. In a March 21 email to this office Mr. Higgins filed "an appeal of the response of the Town of Swansea" to his request; however, Mr. Higgins failed to state the portion of the appeal he deemed objectionable. Failure to respond to request to inspect records, including executive session records Mr. Higgins requested the opportunity to "inspect" email records as well as executive session records. The Town failed to acknowledge Mr. Higgins' request for executive session records. The Town provided a fee estimate for search time, indicating a copying cost could not yet be determined. A custodian may assess a fee for search time associated with the inspection OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. John McAuliffe SPR16/194 Page 2 March 29,2016 of public records, but may not assess a fee for unwanted copies of those records. 950 C.M.R. 32.06(4). Duty to return records to custodian - email records Mr. Higgins request to inspect email records is limited to those "sent to or received" by a former Selectman, including only those records required to be returned by the former Selectmen upon leaving office. Under Massachusetts law a government employee has a duty to return records upon termination of employment: Whoever has custody of any public records shall, upon the expiration of his term of office, employment or authority, deliver over to his successor all such records which he is not authorized by law to retain, and shall make oath that he has so delivered them, according as they are the records of the commonwealth or of a county, city or town, before the state secretary, the clerk of the county commissioners or the city or town clerk, who shall, respectively, make a record of such oath. G. L. c. 66, § 14. It appears from the request that Mr. Higgins is interested in inspecting the email records the former Selectmen returned to the Town upon the "expiration of his term of office." The Town's response failed to limit its response in a manner consistent with this request. Order I find the Town failed to respond to Mr. Higgins' specific request for records. Accordingly, the Town is hereby ordered, within ten (10) days ofthis order, to review Mr. Higgins' March 10 request and provide Mr. Higgins with a revised response, prepared in a manner consistent with this order, the Public Records Law and its Access Regulations. Ifthe Town maintains that any portion ofthe responsive records are exempt from disclosure it must 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. 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.

Mr. John McAuliffe SPR16/194 Page 3 March 29,2016 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 general 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 Law upo request. Please contact my office directly at the telephone number provided in this deter · ti n for further information. cc: Mr. Patrick Higgins