Veronica Kell v. Townsend, Town of - Town Administrator (SPR 20160392)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 22,2016 SPR16/391, SPR16/392 Mr. James M. Kreidler Interim Town Administrator Town of Townsend 272 Main Street Townsend, MA 01469 Dear Mr. Kreidler: I have received the petition of Veronica Kell appealing the nonresponse and incomplete response ofthe Town of Townsend (Town) to her May 12,2016 request (SPR16/391) and May 26, 2016 request (SPR16/392) for public records. G. L. c. 66, § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Kell requested copies of four categories of records. Ms. Kell appealed both the timeliness and content of response by the Town, including the Town's fee estimate to provide responsive records. On June 16,2016, subsequent to the opening ofthis appeal, an attorney on my staff contacted you by telephone and email, providing you with a copy of the files associated with Ms. Kell's appeal. The Public Records Law 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 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). Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § 1O (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. Custodians are advised that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. James M. Kreidler SPR16/391, SPR16/392 Page 2 June 22, 2016 A custodian may assess a reasonable fee for complying with a public records request. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a public records request is expected to exceed ten dollars ($1 0. 00), custodian shall provide written good faith estimate). A custodian may a fee if complying with a request requires "search time." See 950 C.M.R. 32.03 (defining "search time" as the time needed to locate, pull from the file, copy, and re-file a non-computerized public record). In the case of an electronic record, the custodian may charge "search time" to search for the data or record and copy that data onto an electronic media storage unit. The Regulations provide that, in cases where search time is necessary, a custodian 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)(a). The search fee must reflect the actual cost of complying with a particular request. G. L. c. 66, § 1O (a). 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 upon request. Please contact my office directly at the telephone number provided in this determination for further information. Present appeal The Town's Building Commissioner, Mr. Hanks did not respond to Ms. Kell's May 12, 2016 request for emails; therefore she made a second request to the Town on May 26 for the same emails. On May 12, 2016, you provided Ms. Kell with some ofthe emails between the Building Commissioner and yourself (Town Administrator); however to date Ms. Kell has not received all the emails that she requested. In her requests, she asks the Town to provide the emails in their native, electronic format, and that she would provide the Town with an electronic media storage device if needed. No responsive records By email on May 19, 2016, Carla Walter informed Ms. Kell that the Town has no records responsive to portions of her request. A record holder's duty to comply with requests for information extends only to those records which exist and are in his custody. See G. L. c. 4, § 7 (26). There is no obligation to create a record in response to a public records request. G. L. c. 66, § 1O (a); 32 Op. Att'y Gen. 157, 165 (May 18, 1977). Town failed to prepare fee estimate in compliance with Regulations In her May 19,2016 email to Ms. Kell, Ms. Walter estimates "potentially" ten (10) hours oftime at an hourly rate of$18.19 to review and produce copies of responsive video records.

Mr. James M. Kreidler SPR16/391, SPR16/392 Page 3 June 22, 2016 Ms. Walter explained that the Town has four (4) cameras, estimating four (4) hours per camera to review and capture any footage from that particular date. The Town's estimate included a fee for at least four (4 ) trips to the Recycling Center to accomplish the review and copying of the footage at fifty-four ($.54) cents per mile. A fee of this type is not permitted by the Public Records Law or its Regulations in response to a request for public records as it does not reflect costs associated with searching for or segregating records. Order I find the Town has failed to comply with the Public Records Law and its Regulations. Accordingly, the Town is hereby ordered without delay to prepare a revised written, good faith estimate for the provision of responsive records. This estimate must be prepared in accordance with the Public Records Law, its Regulations and this order. 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. As Interim Town Administrator it may benefit you and the Town to receive training on the Public Records Law and its Regulations. I encourage you to contact this office for more information regarding training workshop opportunities. cc: Ms. Veronica Kell