John R. Ward v. Rockland, Town of - Board of Selectmen (SPR 20160204)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April6, 2016 SPR16/204 Mr. Allan R. Chiocca Town Administrator Town Hall 242 Union Street Rockland, MA 02370 Dear Mr. Chiocca: I have received the petition of John Ward appealing the response of the Town of Rockland (Town) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Ward requested copies of records regarding a Town consultant position. In a response dated March 14, 2016 the Town provided Mr. Ward a fee estimate for the provision of records responsive to his request. The basis of Mr. Ward's appeal is the Town's intent to charge the Town Administrator's hourly rate for searching for and segregation of responsive records. Request to Answer a Question Please note Mr. Ward's request for public records included several questions posed to the Town. Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. Search & Segregation 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, § 1O (a). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. Allan R. Chiocca SPR16/204 Page 2 April 6, 2016 The Town's fee estimate contained a one (1) hour fee "to gather information" at what appears to be the Town Manager's hourly rate of$72.25. In its letter the Town notes that if it takes less than (1) hour for search and segregation it will refund Mr. Ward with the difference. "Search time" means the time needed to locate, pull from the files, copy and re-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. The Regulations mandate that "Search and Segregation" 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, § 1O (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." 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. Order Subsequent to the intervention by a member of my staff, you agreed to provide a revised fee estimate, explaining with specificity, the Town's basis for charging the hourly rate of the Town Administrator's salary for search and segregation. Whereas this matter was opened based upon the reasonableness of the Town's original fee estimate, I will consider this administrative appeal closed, with the proviso that a revised estimate be provided within ten (10) days. Mr. Ward may appeal the substantive nature of the Town's response within ninety (90) days. See 950 C.M.R. 32.08(2). 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. Fees for Copies The Town is hereby advised that under the current Regulations, a custodian ofrecords may assess a maximum fee offive 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). The Town may assess a maximum fee of five cents ($.05) per page. See 950 C.M.R. 32.06(1)(a).

Mr. Allan R. Chiocca SPR16/204 Page 3 April6, 2016 Exemptions Please be further advised that should the Town intend to redact or withhold any information 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. 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 records 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 dete · at n for further information. urs, cc: Mr. John Ward