Christopher Donovan v. Norwood, Town of - Town Clerk (SPR 20170640)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 24, 2017 SPR17/640 Brandon H. Moss, Esq. Town of Norwood Legal Counsel Murphy, Hesse, Toomey & Lehane 300 Crown Colony Drive, Suite 410 Quincy, MA 02169 Dear Attorney Moss: 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 § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, 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, dating back 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 communications to you, Airport Manager Russ Maguire and this office, Mr. Donovan stated that he requested the records to try and conduct operations of his business, Boston Executive Helicopters, at the Town's airport. It is important for Mr. Donovan to understand that his status as the President of Boston Executive Helicopters 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). 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

Brandon H. Moss, Esq. SPRl 7/640 Page2 May 24, 2017 Prior appeal and petition for extension of time The requested records were the subject of a previous appeal and petition for an extension of time. See SPRl 7/377 Determination of the Supervisor of Records (April 7, 2017); see also SPRl 7/537Determination of the Supervisor of Records (April 27, 2017). ?1\ On March 1 Mr. Donovan frovided the Norwood Municipal Airport with a check for $350.00, the amount of the March 16t written, good faith estimate. On April 6th, prior to my April J1h determination issuing, Airport Manager Russ Maguire provided Mr. Donovan with all the responsive records electronically via email. In my April J1h determination, I asked the Town to advise Mr. Donovan whether any of the records were in electronic format, whether the records could be reviewed prior to paying for any copies of the records, and whether any of the records were subject to segregation (redaction). This is the basis of Mr. Donovan's current petition and appeal, SPRl 7/640. Town's response after determination ofp etition and prior appeal In your May 5th letter, you explained that Mr. Maguire actually spent a total of seventeen (17) hours of time in searching for, compiling and producing the responsive records at $25 per hour. In compliance with the new provisions of the Public Records Law, the Town did not charge for the first two (2) hours of employee time. However, the Town's original estimate was for fourteen hours as provided in the March estimate. In response to the March estimate of $350.00, Mr. Donovan provided the Town with a check in that amount. The Town now seeks to recoup another hour of time at $25.00, after Mr. Donovan paid for and received the records from Mr. Maguire. While the Town is allowed to charge fees for complying with a public records request, the fees must be provided to the requester in a written, good faith estimate prior to the custodian or records access officer conducting a search for those records. Any difference between the initial estimate and the actual time expended should have been communicated in writing prior to the search, not in a cover letter that accompanies the records. This office is now unable to assist the Town in recouping that cost. See G. L. c. 66, § lO(b)(viii) (records access officer must include an itemized, good faith estimate of any fees that may be charged to produce the records within ten business days of receipt of the request). In response to my April J1h determination, you explained that the request included searching for approximately twenty (20) years of paper records, not electronic records, and that none of the records were redacted. It is my understanding that the Town used the incorrect defined term in the Public Records Law Access Regulations to explain that the records had been compiled, not segregated, as in. removing exempt materials from the content of a record. Therefore, the estimate was revised to reflect the proper defined terms in the Public Records Law Access Regulations.

Brandon H. Moss, Esq. SPR17/640 Page 3 May 24, 2017 While Mr. Donovan requested to review or inspect the records prior to any copies, Mr. Donovan was not charged for any of the copies that were provided to him. The Town only assessed the costs to search, compile and produce the records. Further, the Town provided Mr. Donovan with all the records in electronic format, via email. Conclusion Whereas, the Town has provided Mr. Donovan with the records responsive to his requests, this administrative appeal is closed. . If Mr. Donovan is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § lOA(a) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Christopher Donovan Thomas J. McQuaid, CPA, Town Clerk