Kaitlyn Shinney v. Hingham, Town of - Board of Selectmen (SPR 20180553)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 8,2018 SPR181553 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 the 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 16,2017, Ms. Shinney requested various categories of records from the Town including "[tlhe posting titled 'All officers harassment policies' for the Town of Hingham Fire Department. . ." Previous appeal This request was the subject of a previous appeal. See SPR181042 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 1o th,h aving not yet received responsive records, Ms. Shinney petitioned this office and SPR181042 was opened as a result. I closed SPR181042 by ordering the Town to provide Ms. Shinney with a response within ten business days. The Town provided a response on February 2,2018 , including responsive records, claiming Exemption (c) of the Public Records Law and claiming to not have responsive records to the remaining categories of records requested. G. L. c. 4, 9 7(26)(c). Unsatisfied with the Town's response, Ms. Shinney petitioned this office and this appeal, SPR181553, was opened as a result. 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, 9 1O A(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). One Ashburton Place, Room 1719 , Boston, Massachusetts 02108 = (61 7) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Sharon Perfetti Page 2 May 8,201 8 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 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. The Town's November 2f1' and February 2ndr esponses The Town provided Ms. Shinney with a fee estimate on November 27,2017. On February 2,2018, the Town provided Ms. Shinney with a substantive response including responsive records, an Exemption (c) claim and indication that the Town did not possess responsive records for various categories of the request. In Ms. Shinney's April 20,2018 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, 5 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 lO(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 skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 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 lO(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). See G. L. c. 66, 5 lO(d)(iii); 950 CMR 32.06(4). The Town's November 27thf ee indicates the Town "estimate[s] that the cost of gathering this information will be $50.00." 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

Sharon Perfetti Page 3 May 8,2018 includes a breakdown of "[qour hours (less two) = 2 x $25 = $50.00." 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 four 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; specificity 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, fj 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, fj 10(a); 32 Op. Att~G en. 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, fj 7(26). Where the Town has indicated it does not possess responsive records, I find that Ms. Shinney's appeal related to those requests has been resolved. However, although the Town provided some responsive records, it is unclear whether the Town possesses other records responsive to those portions of the request. The Town must clarify this matter. Additionally, the Public Records Law states that "the burden shall be upon the custodian to prove with speciJicity the exemption which applies." G. L. c. 66, fj 1O (b)(iv)(emphasis added); -see -also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 5 11. The Town's February 2ndr esponse did not contain the specificity required in a denial of access to public records. Instead, the Town's response merely cites Exemption (c) without any further explanation as to the exemption's applicability to the requested records. The Town is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find that the Town failed to satisfy its burden in responding to this records request. The Town is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. 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.

Sharon Perfetti Page 4 May 8,2018 Sincerely, d Rebecca S. Murray Supervisor of Records cc: Kaitlyn Shinney