Christopher Donovan v. Norwood, Town of - Town Clerk (SPR 20170377)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 7, 2017 SPR17/377 Thomas J. McQuaid, CPA Town Clerk and Records Access Officer Town of Norwood 566 Washington Street, Room 27 Norwood, MA 02062 Dear Mr. McQuaid: I have received the petition of Christopher Donovan appealing the response of the Town of Norwood (Town) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, on March 2, 2017 Mr. Donovan requested: 1. A copy of the FAA authorization that supports the statement quoted or noted on the Plan I and the Flight Level Map ( either written or email authorization to include any telephone records); 2. The name of the staff member at FAA Regional Headquarters or the Norwood Memorial Airport (Airport)'s Division who the Town had contact with regarding this area either recently or in the past up to 1997 ( any correspondence regarding this area with the FAA); and 3. Any correspondence from 2010 to the present with Flight Level or Norwood Engineering, whoever prepared the map. Status of the Requester and Reason for the Request In his petition for an appeal, Mr. Donovan stated to you as well as Airport Manager Russ Maguire and this office that he requested the records to try and conduct operations of his business at the Town's Airport. It is important for Mr. Donovan to understand that his status or interests in the underlying matter which led to the public records request does not afford him any greater right of access to the requested information under the Public Records Law. 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, Mr. Donovan's status will play no role in a determination regarding the Public Records Law. 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

Thomas J. McQuaid, CPA SPRl 7/377 Page2 April 7, 2017 Appeal to the Supervisor You informed a Public Records Division attorney that the Town did not receive a copy of Mr. Donovan's petition to the Supervisor of Records (Supervisor) requesting an administrative appeal. It is my understanding that a Public Records Division attorney provided you with a copy of the appeal file. Mr. Donovan is reminded that under the new requirements in the Public Records Law, when petitioning the Supervisor for an appeal, the requester shall provide a copy of such petition to the RAO associated with such petition. 950 C.M.R. 32.08(l)(h). Written, Good Faith Estimate If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § lO(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c.66, § lO(d)(i). Municipalities with a population of over 20,000 may not assess a fee for the first two (2) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. 950 CMR 32.07(2)(m)(l). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. 950 CMR 32.07(2)(m)(3). On March 141 Airport Manager Russ Maguire provided a response that informed Mr. \ Donovan that the Airport is conducting a preliminary search for responsive records, as the Airport seeks to determine whether any responsive records exist and whether there are any exemptions in the Public Records Law that may apply. Mr. Maguire provided what he referred to as a "preliminary estimate" for the costs of search time, segregation time and/or copies of the records, for a total cost of $568.16. It is my understanding from a review of the March 14th response that once the search was complete, Mr. Maguire would provide a final cost and any applicable exemptions that apply. After receipt of the estimate on March 141 Mr. Donovan stated that he wanted to review \ the records which may be responsive to his request. He asked Mr. Maguire, "May I view what Flight Level viewed or Norwood Engineering viewed to make their map and their determination that the area was all a ramp? I believe this was all part of the AIP project 3-25-0037-14?"

Thomas J. McQuaid, CPA SPR17/377 Page 3 April 7, 2017 On March 16th, realizing that under the new provisions in the Public Records Law the Town cannot charge hourly rates in excess of twenty-five ($25.00) dollars per hour, and cannot charge for the first two (2) hours of time spent searching for, compiling, segregating, redacting and reproducing a requested record, Mr. Maguire provided a revised estimate. See 950 C.M.R. 32.07(2)(m)(3); see also 950 C.M.R. 32.07(2)(m)(l). The Town's estimate was revised from the original sixteen (16) hours to fourteen (14) hours to search for, segregate and copy records at twenty-five ($25.00) dollars per hour for a total cost of $350.00. A review of this March 16th response reveals that Mr. Maguire has presumed from Mr. Donovan's March 14th email that he is seeking any correspondence with Flight Level or Norwood Engineering relative to the preparation of Flight Level's fuel plan drawing. Additionally, although Mr. Donovan did not identify the "as-built plans for AIP Project #3-25-0037-14 in his original March 2nd public records request, Mr. Maguire invited him to review these plans. i\ On March 1 Mr. Donovan put a check in the amount of $350.00 in an envelope addressed to Mr. Maguire and placed it in the mailbox outside Mr. Maguire's office. On March 20t1\ Mr. Donovan asked the Town to waive the costs and either send him a refund or return the check to him uncashed. You informed Mr. Donovan on March 23rd that the Town had already commenced a search for all the requested records. The same day, Mr. Donovan informed you that he would like the records provided in an electronic format, if the records are available electronically, so that it would not be necessary for the Town to charge for the cost of copies. Mr. Donovan stated that he believes that it would be easier for everyone if all the records were on the Town's webpage and that any electronic information can be simply forwarded to him via email. After his March 23rd email, Mr. Donovan sent a petition to the Supervisor of Records for an appeal. The Town's estimate includes a fee for segregation time which is defined as, "the time used to review records to determine what portions are subject to redaction or withholding under G. L. c. 4, § 7(26) or other legally applicable privileges." See 950 C.M.R. 32.02 (definitions). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor under 950 CMR 32.06(4)(g) and (h). See 950 CMR 32.07(2)(m)(4). The Town has not provided any statutory basis allowed for the segregation, nor has the Town sought approval from the Supervisor of Records to assess fees for segregation. The Town has also not allowed Mr. Donovan to inspect any records that are readily available and responsive to his request, or explained whether any of the records are available in electronic format, as Mr. Donovan requested. Order I find that the Town has not met its burden and must clarify whether the records are in an electronic format, whether the Town is planning to make the records available for inspection, and whether any statutory basis requires that the Town redact certain information in the records. The

Thomas J. McQuaid, CPA SPRl 7/377 Page 4 April 7, 2017 Town must detail this information in its estimate. Mr. Donovan must be provided with a revised estimate to clarify these points and support the Town's statutory basis for the fees for segregation. Accordingly, the Town is ordered to provide Mr. Donovan with a response to the request, including a revised written, good faith estimate, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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. Mr. Donovan may appeal the substantive nature of the supplemental response and revised estimate within ninety (90) calendar days. 950 CMR 32.07(1). Sincerely, Yvltu,uaY- ~~ Rebecca S. Murray Supervisor of Records cc: Christopher Donovan Russ Maguire