Gerard F. Russell v. Charlton, Town of - Town Administrator (SPR 20181306)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 12,201 8 SPR1811306 Robin L. Craver Town Administrator Town of Charlton 37 Main Street Charlton, MA 0 1507 Dear Ms. Craver: I have received the petition of Gerard Russell appealing the response of the Town of Charlton (Town) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Mr. Russell requested records relating to Valley Green Grow, specifically: 1. Records using search terms beginning March 201 8: (a) Marijuana, (b) 44 Old Worcester, (c) Charlton Orchard, (d) Dr. Jeffery Goldstein, and (e) Valley Green Grow LLC; 2. Emails and/or other documents including drafts evidencing communications to, from, about or between: (a) Jeffrey Goldstein of Valley Green Grow or his representatives, (b) Planning Board members and staff, (c) Board of Selectmen members and staff, (d) Town Administrator, (e) Zoning Enforcement Officer Curtis Meslus, (f) Fire Department employees, (g) Police Department employees, and (h) Any other Town official or employee 3. Records with a subject matter of: (a) Any and all drafts relating to zoning amendments concerning marijuana establishments in the Town, (b) Any documents concerning discussion of marijuana regulations or marijuana businesses in the [Town], 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

Robin L. Craver Page 2 September 12, 2018 (c) Any electronic documents from Valley Green Grow, or about Valley Green Grow, (d) Any related interests involving Valley Green Grow, (e) Any and all minutes of board of selectmen meetings during which selectmen authorized the Town Administrator to negotiate a host agreement and developer agreement with Valley Green Grow Inc., and (f) Minutes of any executive session minutes during which Valley Green Grow was discussed by selectmen. Previous appeal - SPR18/109 7 This request and fee estimate were the subject of a previous appeal. See SPRl811097 Determination of the Supervisor of Records (Supervisor) (August 7,2018). In my August 7th determination, I closed SPR18/1097 with the understanding that Mr. Russell agreed to the $300.00 fee estimate and that the Town would send a confirmation letter to Mr. Russell regarding the $300.00 fee in a manner consistent with the order, the Public Records Law and its Regulations within 10 business days. Previous petition - SPR18/1175 This request was the subject of a petition from the Town seeking an extension of time to produce the records once Mr. Russell agreed to the reduction of the fee from $1338.00 to $300.00. See SPRl811175 Determination of the Supervisor (August 14,201 8 ). In your August 7, 2018 petition to this office you state, "[olnce Mr. Russell accepts the Selectmen's offer to reduce the fee to $300.00, his request below will take time to review for relevance, redact if required to do so by law and transfer to an electronic form." You further state, "I propose to fulfill the request on rolling bases and respectfully request an extension of 30 days to complete. This way he will not be waiting for materials and we will have time to review needed records." In my August 14'~d etermination, I found that in light of Mr. Russell's August 7'" and August 8"' letter, as well as the Town's communications with this office, I declined to opine for an extension of time as Mr. Russell has not agreed to the revised fee estimate. I also encouraged the Town and Mr. Russell to communicate further to enable the Town to provide the requested public records. Current appeal - SPR18/1306 In his August 16tha ppeal petition, Mr. Russell states, "[ilt is not my intention to try the patience of the supervisor's office, and while I understand the supervisor may not compel the Cliarlton records officer to waive any costs associated with my request, I believe the public interest aspect of my request meets any reasonable test for a waiver of costs."

Robin L. Craver Page 3 September 12,201 8 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 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, 3 lO(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 sltill 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 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). G. L. c. 66, 5 lO(d)(iii); see also 950 C.M.R. 32.06(4). The Town's August 7,2018 response The Town indicated in its August 7the mail to Mr. Russell, "please see the response to your request to waive fees for your Public Records [rlequest to the Charlton Board of Selectmen, Town Administrator, Planning Board [dlated June 7 and 24, 2018 - revised June 28,2018 . The Board has reduced the cost to $300.00." Attached to the August 7th email, the Town provided a letter to explain the reduction of the fee from its original $1338.00 estimate to $300.00. It states, "[tlhe Charlton Board of Selectmen has worked with Mr. Gerry Russell to find a reasonable cost, considering the massive amount of records he has asked the Town to produce. The Board of Selectmen is committed to transparency and the rights of the public to review and receive public documents. With that said once Mr. Russell accepts the Selectmen's offer to reduce the fee to $300.00, his request.. .will take time to, review for relevance, redact if required to do so by law and transfer to an electronical form." The Town also aslted for an extension of time to produce these records. & SPR1811175. While the Town explained the brealtdown of its estimate of June 28,201 8, it has not detailed the breakdown of the $300.00 total cost of the August 7the stimate. The Town has not demonstrated how much time is necessary for a search of the records, compilation of the records, and copying of the records at the lowest hourly rate for a total cost of $300.00. Nor has the Town detailed what redactions are necessary and required by law, other than the suggested attorney- client privilege. The burden of specificity in claiming exemptions is on the Town. & G. L. c.

Robin L. Craver SPR1811306 Page 4 September 12,2018 66, 5 1O (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 lO(d)(iv)). Further, it is unclear whether the Town 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). Therefore, the Town must detail its $300.00 revised fee estimate to provide Mr. Russell with the responsive records. Waiver of fees his previous appeal, SPRl811097, Mr. Russell seeks a complete waiver of the $300.00 fee to provide him with all the responsive records. As stated in my previous determination in SPR1811097, this office laclts the authority to compel a records custodian to waive fees for providing public records. 950 C.M.R. 32.07(2)(k). Conclusion While the Town has significantly reduce the estimate, the Town did not provide sufficient detail to support the $300.00 estimate. Accordingly, I find that the Town is ordered to explain its $300.00 estimate, 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: Gerard Russell