Kim Sherwood v. Town of Topsfield - Town Clerk (SPR 20171651)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 8, 2017 SPR17/1651 Mary E. (Beth) Willis Office of the Selectmen & Town Administrator 8 West Common Street Topsfield, MA 01983 Dear Ms. Willis: I have received the petition of Kim Sherwood appealing the response of the Town of Topsfield (Town) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Sherwood requested "all correspondence of the Committee sent or received by email, regular mail or other method, between the time period of September 18, 2017 to October 2, 2017." The Town responded to her request, providing a revised fee estimate and claiming Exemption ( o) allowed for the redaction of email addresses. Previous appeal This request was the subject of a previous appeal. See SPRl 7 /1578 Determination of the Supervisor of Records (November 16, 2017). In SPRl 7/1578, I found the Town must revise its fee or provide a further explanation of how the fee assessed is consistent with G. L. c. 66, § lO(d). The Town indicated it would provide a supplemental response to Ms. Sherwood. The Town provided a response on November 22nd, which included a revised fee estimate and an Exemption (o) claim to redact portions of the records, specifically email addresses. See G. L. c. 4, §7 (26)( o ). Subsequently, Ms. Sherwood petitioned this office and this appeal, SPRl 7 /1651, was opened as a result. Current appeal In her appeal petition, dated November 29th, Ms. Sherwood requests this office "verify the legality of this new [fee] estimate, which still appears high for the task involved." Additionally, Ms. Sherwood "question[s] whether the redaction of these personal email addressed [sic] is allowed under this exemption, or any other provision of the law, due to the way that the personal addresses have knowingly been used to conduct official town Finance Committee business." Ms. Sherwood indicates that "the members of the Finance Committee 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

Town of Topsfield SPR17/1651 Page 2 December 8, 2017 were using their personal email addresses to conduct official business," and she "therefore believe[ s] under these circumstances, the personal email addresses relating to Finance Committee business are not redactable under Exemption 0. The four emails must be provided to [her] without the redaction of the email addresses." Fee estimate The Town's November 22nd response includes a fee estimate of $9.26 for 30 minutes of employee search time for responsive emails. 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, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. Municipalities may not assess a fee for the first two hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d )(iii). 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. Id. The Town indicates it has assessed its fee at an hourly rate of $18.53, which is that of the Finance Committee Recording Secretary who "may have been capable of doing the search at a lower hourly rate" than that of the Finance Committee Chair, whose rate was used in the Town's previous estimate. Additionally, the Town indicates it spent "a minimum of 30 minutes of time to conduct the search [of] all email records in order to fulfill the request." The Town confirms that it is of a population of less than 20,000. As the Town has confirmed its population size to allow for a fee to be assessed for the first two hours of work completed, it has used the rate of the lowest employee capable of performing the task and is charging for the actual time spent searching for the records, I find the Town is permitted to charge the estimated fee amount of $9 .26 for Ms. Sherwood to view the responsive records. Exemption (o) The Town indicates it is withholding "[p]ersonal email addresses of Finance Committee members." The Town claims Ms. Sherwood's "request requires the redaction of the personal email addresses of one or more members of the appointed Finance Committee from the responsive records." It asserts Exemption (o) as its basis for withholding the personal email addresses. Exemption (o) applies to:

Town of Topsfield SPRl 7/1651 Page 3 December 8, 2017 the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6. G. L. c. 4, §7 (26)(o). A public employee has a diminished expectation of privacy with respect to use of personal email used in an official capacity. The use of personal email addresses by government officials, employees and/or board and commission members while conducting any day-to-day business of a government entity renders the emails and email addresses public records. At least one Court has found that personal email addresses used for a public purpose by a government employee are a public record. See Mechling v. City of Monroe, 152 Wn. App. 830 (2009) (Personal email addresses used by City Council members to discuss city business are not exempt from disclosure under public disclosure statutes). Any email addresses for Town employees used in their employment capacity are not exempt from disclosure under Exemption ( o ). Accordingly, the Town is not permitted to redact the personal email addresses of the Finance Committee members from the responsive records. Conclusion The Town may assess a fee at the estimated amount and must make those records available for view in their unredacted form. The Town is advised that upon payment of the fee, it must make the records available for Ms. Sherwood to view at a reasonable time and without unreasonable delay. This administrative appeal is now closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Kim Sherwood