Sally W. Rose v. Walpole, Town of - Town Administrator (SPR 20160600)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 18, 2016 SPR16/600 Mr. Jim Johnson Town Administrator 135 School Street Walpole, MA 02081 Dear Mr. Johnson: I have received the petition of Sally W. Rose appealing the response of the Town of Walpole (Town) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Rose requested several categories ofrecords related to a "Commitment agreement." Ms. Rose's request also asked several questions in her request for records, including a request for "the name ofthe Town's counsel," as well as "the names and positions" of individuals the Town "spoke or corresponded with" regarding "Siemens TIF negotiations." In a timely response the Town provided a fee estimate and generally responded to the request. Ms. Rose appealed the Town's fee estimate, citing portions of the Public Records Access Regulations (Regulations) relating to fees and fee waiver. In her petition Ms. Rose noted that she is the "Walpole Representative Town Meeting Member for Precinct 6." Fees for access to public records 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 ($1 0.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Regulations. See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of five cents ($.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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Jim Johnson SPR16/600 Page2 August 18, 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, § 10(a). Personal status of requester provides no greater right of access Please note that the personal status of Ms. Rose as Walpole Representative Town Meeting Member does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Rose's status will have no bearing on the status of responsive records or fees associated with provision of those records. Town's fee estimate is reasonable In your response to Ms. Rose's request you indicated "it will take approximately two hours" for you to search for and segregate the responsive records, consisting of "e-mails and other correspondence, and potentially to separate portions or entire records" that may exempt pursuant to a specific exemption or common law privilege. While your hourly rate is $83.00, you agreed to charge the lower rate of $40.69 per hour, the hourly rate of your assistant. Further, you indicated that you anticipated "15 pages of responsive records," however you chose to waive the copying fee. I find this response is clear, complete and made in compliance with the Regulations. Answers to questions posed in a request for public records Ms. Rose's request included questions, including a query as to "the name of the Town's counsel," as well as "the names and positions" of certain other persons in contact with the Town. In your response you indicated that under the Public Records Law "there is no requirement" to create a record. You further explained that under the Public Records Law there "is also no requirement that the Town provide answers to questions." You explained that "if there are records responsive" the Town would provide such records, in accordance with the Law. Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. I find the Town answered these questions properly by stating that any records containing answers to the questions would be deemed responsive to the query. In this way the Town would respond to the request and not be required to create records or answer questions in response to the query. I find this response to be proper and in compliance with the Public Records Law and its Regulations.

Mr. Jim Johnson SPR16/600 Page 3 August 18, 2016 Conclusion I find the Town acted properly in its timely response to a request for public records. The fee estimate provided is reasonable and provides the detail required by the Regulations. Further, I find the Town properly responded to questions posed by Ms. Rose by stating it would provide any existing records that provide responsive answers to those questio s. Accordingly, I will consider this administrative appeal closed. isor of Records cc: Ms. Sally W. Rose