Patrick Higgins v. Swansea, Town of - Town Administrator (SPR 20160772)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 13, 2016 SPR16/772 Mr. Arthur D. Frank, Jr., Esq. 209 Bedford Street, Suite 402 Fall River, MA 02720 Dear Attorney Frank: I have received the petition of Patrick Higgins appealing the response of the Town of Swansea (Town) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Higgins requested copies and an opportunity to review and inspect all emails sent or received by a number of specifically identified individuals from the years 2013 to 2016. Previous appeal This is a continuation of a previous Determination. See SPR16/567; SPR16/568 Determination of the Supervisor of Records (August 11, 2016). In my August 11 determination, I closed the appeal with the proviso that the Town provide Mr. Higgins with a written response. In compliance with this order the Town responded to Mr. Higgins in a letter dated September 12 that contained a fee estimate of$10,965.56. On that same day, Mr. Higgins appealed this fee estimate, questioning why the Town would need nearly 600 hours of search and segregation time for records it has already identified as responsive to the request. 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 response may be an offer to provide records, a fee estimate for provision of the records, or a denial. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Arthur D. Frank, Jr., Esq. SPR16/772 Page 2 October 13, 2016 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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. If there are any fees associated with a 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 fees are paid, a records custodian must provide the responsive records. Fees In your September 12letter to Mr. Higgins you provided a fee estimate for provision of the responsive records. The estimate included fees of $10,965.56 for "search/segregation" of 35,564 documents. This cost is calculated based upon the hourly rate of $18.50 per hour, the rate of the "lowest paid clerk." You further state it will take "one minute of search time per email." It is my understanding you spoke via telephone with a member of my staff regarding this appeal. Fees for copies 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 ($1 0. 00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of five cents ($.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). The Town's response does not reference fees for copies of records that are responsive to Mr. Higgins' request. Fees for search and segregation time 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

Mr. Arthur D. Frank, Jr., Esq. SPR16/772 Page 3 October 13, 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). In a telephone conversation with a member of my staff, you stated, as indicated in your letter, that the Town identified approximately 35,564 responsive emails. Accordingly, the "search time" portion of the response has concluded. The September 12 response indicates 592.73 hours at a rate of $18.50 would be required for "search/segregation;" however whereas the "search time" has apparently concluded it appears the fee associated with 592.73 hours of time required would be for "segregation time." The Town's September 12 estimate calls for "one minute of search time per email," to review the responsive records. This response is unclear, as the search has already been completed, resulting in over 35,000 responsive emails; it is presumed this "one minute" refers to "segregation time" rather than "search time." It is also unclear from the response how many email records exist broken down by the six specific names cited in Mr. Higgins' request. You informed my staff member that you will personally sit with a Town employee when she reviews the responsive records, and that you would perform any segregation ofthe responsive records. You further indicated that the Town would waive any fees associated with your review ofthe responsive records. Accordingly, whereas the "search time" has concluded, and further whereas any "segregation time" would be performed by you and not the Town staff member, and that all costs associated with your "segregation time" review have been waived, the only conclusion is that the Town employee would not be conducting any review for which "segregation time" fees would apply. Accordingly, I find the Town erred in its assessment of the $10,965.56 fee estimate. It is my understanding that the Town has agreed to provide a revised, final response associated with Mr. Higgins' request. Order Accordingly, the Town is hereby ordered to revise its response to Mr. Higgins' request, prepared in a manner consistent 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. The Town need send only one copy of the response to this office; accordingly, if the Town sends an electronic copy to this office do not send a second copy through regular mail. cc: Mr. Patrick Higgins