Seth Kershner v. Westfield, City of - Office of the City Solicitor (SPR 20160398)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 30, 2016 SPR16/398 Ms. Susan C. Phillips, Esq. City of Westfield Office of the City Solicitor 59 Court Street Westfield, MA 01085 Dear Attorney Phillips: I have received the petition of Seth Kershner, a freelance journalist, appealing the response of the City of Westfield- City Solicitor (City) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Kershner requested a copy of various records from 2006 to the present (April29, 2016, date of the request) regarding the City's Police Department Special Response-SWAT team. The City provided a basic cost estimate on June 2, 2016 of $670.14. Mr. Kershner appealed, asking this office to order the City to waive the public records fees. 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). 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. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Susan C. Phillips, Esq. SPR16/398 Page 2 June 30, 2016 Fees Mr. Kershner requested a fee waiver, and appealed the City's denial of this request. While the Public Records Law permits records custodians discretion to waive fees allowed by the Public Records Law Access Regulations, this office cannot mandate that a records custodian do so. While the City is not required to waive its fees, I find the estimate provided by the City must be revised as it was not prepared in compliance with the Public Records Law and its Access Regulations (Regulations). 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 ($10.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Regulations. See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of five cents ($.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 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, § 10(a). The City failed to provide a detailed, written estimate. Your June 2, 2016letter states the City will charge fees for searching, compiling and redacting the responsive documents. You state further, "please be advised that over twelve (12) hours has been spent so far in searching and compiling of documents totaling $670.14. This amount does not include any additional time that will be needed for further gathering of the documents, redacting and copying." The City 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 City to charge for "compiling and copying" as separate charges. Compiling and copying records are tasks that are part of the time assessed for "search." The City has failed to properly detail the costs of providing Mr. Kershner with the responsive records by not providing the lowest-paid hourly rate assessed for "search time" and the costs including the number of hours at the lowest paid hourly rate for any "segregation time."

Ms. Susan C. Phillips, Esq. SPR16/398 Page 3 June 30, 2016 Order I find the City has failed to properly respond to a request for public records. Accordingly, the City is hereby ordered to provide Mr. Kershner with a revised detailed, written estimate, prepared in a manner consistent with this order, the Public Records Law and its Regulations. It is preferable to send an electronic copy of this re ponse to this office at pre@sec.state.ma.us. Once the fees are paid, the City must prov de the responsive records . . Williams Supervisor of Records cc: Mr. Seth Kershner