Susan C. Phillips v. City of Chicopee Law Department (SPR 20160966)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of Records November 10,2016 SPR16/966 Christine Pikula, Esq. City of Chicopee - Law Department City Hall Market Square 17 Springfield Street Chicopee, MA 01013-2776 Dear Attorney Pikula: I have received the October 21, 2016 petition of Susan Phillips appealing the response of the City of Chicopee-Law Department (City) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Phillips requested a copy of records associated with a "settlement." The City replied in a letter dated August 10, 2016 and Ms. Phillips appealed. 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). 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, § 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 One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Christine Pikula, Esq. SPR16/966 Page2 November 10,2016 provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive 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 upon request. Please contact my office directly at the telephone number provided in this determination for further information. Open Meeting Law It appears that some responsive records may fall under the purview of the Open Meeting Law. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination with respect to any records withheld pursuant to the Open Meeting Law. See G. L. c. 30A, § 23. Fee Estimate 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 Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). 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 provided Ms. Phillips with a written fee estimate for the cost of providing her with copies ofresponsive emails, estimating at least 3,000 records exist that are responsive to her request. The estimate does not indicate the hourly rate of the lowest paid person capable of performing the task, nor does it indicate how many hours would be required to complete the task. Accordingly, I find the City must revise its fee estimate. Exemption claim In its response the City indicated that portions of the records may be exempt from disclosure; it appears that the City will be able to determine the applicability of any exemptions upon payment and commencement of record review. I find this response is appropriate; however, the City must provide a detailed response citing applicable exemptions upon provision of the responsive records.

Christine Pikula, Esq. SPR16/966 Page 3 November 10, 2016 Order I find the City must revise its fee estimate in a manner consistent with this order, the Public Records Law and its Regulations. 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. cc: Susan Phillips