Kaitlyn S. Farina v. Hingham, Town of - Town Administrator (SPR 20180808)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

June 18, 2018 SPR18/808

Thomas Mayo

Town Administrator Town of Hingham 210 Central Street Hingham, MA 02043

Dear Mr. Mayo:

I have received the petition of Kaitlyn Shinney Farina appealing the response of the Town of Hingham (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 14, 2017, Ms. Farina requested various categories of records related to an identified individual’s contract with the Town.

Previous appeals

This request was the subject of two previous appeals. See SPR18/551 Determination of the Supervisor of Records (May 8, 2018); SPR18/040 Determination of the Supervisor of Records (January 18, 2018). I closed SPR18/551 by ordering the Town to provide Ms. Farina with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations within ten business days. The Town provided a response on May 29, 2018. Unsatisfied with the Town’s response, Ms. Farina petitioned this office and this appeal, SPR18/808, 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, § 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, § 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, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of

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 Mayo SPR18/808 Page 2 June 18, 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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

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, § 10(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, § 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, § 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. 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, § 10(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, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 CMR 32.06(4).

The Town’s November 27" fee indicates the Town “estimate[s] that the cost of gathering this information will be $75.00.” It further indicates that “[t]his 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 “[fJive hours (less two) = 3 x $25 = $75.00.” In my May 8" determination, I found the Town’s fee estimate lacked sufficient detail. Specifically, the Town had not indicated whether it is charging for searching, compiling, segregating, redacting or reproduction of the responsive records or some combination thereof. Further, the Town had not provided an explanation to justify five hours to “[gather] this information.”

Although the Town indicates in its May 29" response that it is charging for searching for and possible compiling of the responsive records, the Town fails to provide an explanation to justify five hours of search and possible compilation time. Accordingly, the Town is hereby ordered to provide Ms. Farina with a revised fee consistent with the Public Records Law, its Regulations and this determination.

Thomas Mayo SPR18/808 Page 3 June 18, 2018

No duty to create records; additional responsive records; specificity

In the Town’s May 29" response, it indicates “[t]he Town provided [Ms. Farina] with the document [it] located that responded to [her] request. The balance of [her] request deals with communications between the Town and the investigator prior to or during the course of the investigation. While [Mr. Mayo] was not Town Administrator during the investigation, [the Town has] searched for documents that would be or could be responsive to [Ms. Farina’s] particular requests and [the Town has] been unable to locate additional documents.”

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, § 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, § 10(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, § 7(26). Where the Town has confirmed in its May 29"" response it does not possess additional responsive records, I find that Ms. Farina’s appeal related to those categories of records has been resolved.

Order

Accordingly, the Town is hereby ordered to provide Ms. Farina 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. Rebecca S. felecco. Mumaiy

Supervisor of Records

Sincerely,

ce: Kaitlyn Shinney Farina