Kaitlyn Shinney v. Hingham, Town of - Board of Selectmen (SPR 20180551)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 8,2018 SPR181551 Sharon Perfetti Town of Hingham 21 0 Central Street Hingham, MA 02043 Dear Ms. Perfetti: I have received the petition of Kaitlyn Shinney appealing the response of Town of Hingham (Town) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 14,2017, Ms. Shinney requested various categories of records related to an identified individual's contract with the Town. Previous appeal This request was the subject of a previous appeal. See SPR181040 Determination of the Supervisor of Records (January 18,2018 ). On November 27th,t he Town provided a fee estimate. Ms. Shinney indicates she paid the fee on that same day. On January loth,h aving not yet received responsive records, Ms. Shinney petitioned this office and SPR181040 was opened as a result. I closed SPR181040 by ordering the Town to provide Ms. Shinney with a response within ten business days. The Town provided a response on February 2,201 8, including a responsive record and claiming to not have responsive records to the remaining categories of records requested. 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, 5 10A(d); 950 C.M.R. 32.03(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, 5 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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 5 11 (1995) (custodian has the burden of One Ashburton Place, Room 171 9, Boston, Massachusetts 02 108 * (61 7) 727-2832. Fax: (6 17) 727-59 14 sec.state.ma.us/pre pre@sec.state.ma.us

Sharon Perfetti SPRl8155 1 Page 2 May 8,2018 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, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 2P The Town's November and February 2ndr esponses The Town provided Ms. Shinney with a fee estimate on November 27,2017. On February 2,201 8, the Town provided Ms. Shinney with a substantive response including a responsive record and indication that the Town did not possess responsive records for the remaining categories of the request. In Ms. Shinney's April 20,201 8 petition for appeal she indicates she is "appealing the cost of the estimate, lack of information provided and or if [this office] can request the Town to provide [additional] answers." Fee estimates 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, fj 10(d). The fees must a. reflect the actual cost of complying with a particular request. 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, 5 10(d)(i). Municipalities 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 unless the municipality has 20,000 people or less. G. L. c. 66, 5 lO(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 sltill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 Id. per hour. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, 5 1O (d)(iv). 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 of Records under a petition under G. L. c. 66, 5 lO(d)(iv). $ee G. L. c. 66, 9 lO(d)(iii); 950 C.M.R. 32.06(4). The Town's November 27th fee indicates the Town "estimate[s] that the cost of gathering this information will be $75.00." It further indicates that "[tlhis estimate is the result of the amount of time required of the lowest paid employee(s) capable of accomplishing the task," and includes a breakdown of "[qive hours (less two) = 3 x $25 = $75.00."

Sharon Perfetti Page 3 May 8,2018 The Town's fee estimate, while it confirms that the Town intends to the use the lowest paid employee who is capable of performing the task, otherwise lacks sufficient detail. The Town has not indicated whether it is charging for searching, compiling, segregating, redacting or reproduction of the responsive records or some combination thereof. Further, the Town provided no explanation to justify five hours to "[gather] this information." Accordingly, the Town is hereby ordered to provide Ms. Shinney with a revised fee consistent with the Public Records Law, its Regulations and this determination. No duty to create records; additional responsive records; speciJicity Under the Public Records Law, the Town is not required to create a record in response to a public records request. See G. L. c. 66, 5 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, 5 lO(a); 32 OP. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 4, 5 7(26). Where the Town has indicated it does not possess responsive records, I find that Ms. Shinney's appeal related to those categories of records has been resolved. However, although the Town provided a responsive record to one category of Ms. Shinney's request, it is unclear whether the Town possesses other records responsive to that portion of her request. The Town must clarify this matter. Order Accordingly, the Town is hereby ordered to provide Ms. Shinney with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Kaitlyn Shinney