Amy Kates v. Cotuit, Town of - Fire District (SPR 20181017)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 25, 2018 SPR1811017 Ray Pirrone Treasurer Cotuit Fire District 64 High Street Cotuit, MA 02635 Dear Mr. Pirrone: I have received the petition of Amy Kates appealing the response of the Cotuit Fire District (District) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Kates requested "invoices received from any attorneys retained by the Board of Fire Commissioners, to include the reasons for the requests for representation, for the period of 71111 6 through 613011 7." Previous appeals This request was the subject of previous appeals. See SPR1711470 Determination of the Supervisor of Records (October 25,201 7); SPR1711566 Determination of the Supervisor of Records (November 14, 20 17); SPR17117 15 Determination of the Supervisor of Records (December 22,20 17); SPR181133 Determination of the Supervisor of Records (February 13, 201 8). In my February 13' determination I ordered the District to provide a revised fee estimate. I understand that Ms. Kates paid a fee of $96.00 and on May 22, 2018 the District provided responsive records. Ms. Kates appealed and SPR1811017 was opened as a result. Current appeal In her appeal petition Ms. Kates asserts "I am appealing to your office to find in my favor and ask the Cotuit Fire District to reimburse me the $96.00 dollars they charged me for the records I received." Ms. Kates also indicates "[pllease note that the copies of bills received were redacted. I feel that the redactions included much more information than is exempt from disclosure under M.G.L. c. 4, 5 7, clause Twenty-sixth or other legally applicable privileges from non-exempt material." 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

Ray Pirrone Page 2 July 25,2018 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 Id. 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 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, Id. 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 C.M.R. 32.06(4). The District's May 22nd response The District provided a cover letter along with its production of records on May 22ndt hat explained "[tlhe enclosed copies are of all of the legal bills paid by the district for the period [you] requested. In the required review by counsel to protect attorney-client privilege a certain number of duplicates were found. Rather than spend any additional time, I have left the copies in the package." You note that the $96.00 fee "represents 4 hours at $24.00 per hour which is the Assistant Treasurers hourly pay rate. There is no charge for the copies this time." I understand the District previously provided a fee estimate on February 14,2018 totaling $54.46 plus copies at $0.05 each; it is not clear why these fee estimates differ. In her appeal petition Ms. Kates notes that she received 70 double sided pages of paper records as well as several pages of electronic records. She objects to the $96.00 fee and suggests "the cost of the records should have been $2.15. The District charged me $96.00, which means $93.85 would account for fees. That would mean that the Treasurer took 3.75 hours to recover the records, which I feel is unlikely." Ms. Kates further asserts "[ilf I had been permitted to view the records in the office, as I had requested during one of our numerous conversations, I would have been able to see firsthand how long it would have taken for the treasurer to recover the records requested." I find the District must explain why 4 hours were needed to produce the records; specifically, it must describe how much time was needed to search for the records versus how much time was needed to segregate and/or redact. The District must also explain whether the

Ray Pirrone Page 3 July 25,201 8 redactions are required by law. G. L. c. 66, 5 lO(d)(iii)(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 IO(d)(iv)). Further, it is unclear whether the District is within a municipality that has 20,000 people or less. See 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). Redactions Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, 5 1O (b)(iv)(written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based.. ."); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 51 1. The District has not met its burden of demonstrating how the redacted portions of the responsive records fall within an exemption to the Public Records Law. Reinstein v. Police Comm'r of Boston, 378 Mass. 28 1, 289-90 (1979)(the statutory exemptions are narrowly construed and are not blanket in nature). The District must explain how an exemption or applicable privilege applies to the withheld portions of responsive records. Conclusion Accordingly, the District is ordered to provide Ms. Kates a response in a manner consistent with the Public Records Law, its Regulations, and this order within 10 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: Amy Kates