Jude Ahern v. Wellfleet, Town of - Town Clerk (SPR 20181443)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 10, 2018 SPRlS/1443 Joseph Powers, MMC/CMMC Town of Wellfleet-Town clerk 300 Main Street Wellfleet, MA 02667 Dear Mr. Powers: I have received the petition of Jude Ahern appealing the response of the Town of Wellfleet (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 23, 2018, Ms. Ahern requested "copies of the audio recordings made of the Wellfleet Charter Review Committee meetings from July 19, 2016 through January 8, 2018." Previous appeals This request was the subject of previous appeals. See SPR18/927 Determination of the Supervisor of Records (July 6, 2018) and SPRl 8/1298 Determination of the Supervisor of Records (September 1, 2018). In my September 11th determination, I ordered the Town to provide Ms. Ahern with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the September 11th determination, the Town provided a response on September 25, 2018. Unsatisfied with the Town's response, Ms. Ahem petitioned this office and this appeal, SPR18/1438, was opened as a result. While this appeal was pending, the Town provided a supplemental response on October 9, 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, § lO(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). 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

Joseph Powers, MMC/CMMC SPR18/1443 Page 2 October 10, 2017 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, § lO(d)(iv). See G. L. c. 66, § IO(d)(iii); 950 C.M.R. 32.06(4). The Town's September 25th response In its September 25, 2018 response, the Town reiterates that "the personal audio recorder, which in part, contains the Charter Review Committee ('Committee') recordings at issue in this appeal contains other, private personal recordings. Specifically, the device itself is not Town property, but rather is a personal recording device of a Committee member ... who authorized the personal recording device to be borrowed by another Committee member to record portions of Committee meetings to facilitate the preparation of meeting minutes." The Town explains that "[a]s such, there is no ability to have Ms. Ahern come to Town Hall to listen to the recordings given the searching required." The Town indicates that because the device contains" ... Committee recordings [that] are intermingled with other non-Town business personal recordings, ... the estimate of time provided to Ms. Ahern is required to search for the responsive records contained on the device." With respect to the nature of the recording device, the Town states that the device," ... an Olympus Voice Recorder, Note Corder-DP-201 ... does not permit the automatic transfer of data and requires a Town employee to manually search for responsive records throughout all of the audio files on the recorder and, then, manually transfer the data to a separate recording device. The device is not capable of any automatic transfer of data, including through a USB cord." The Town explains that "[t]his searching process is incredibly time consuming given the type of device at issue, the sheer volume of the data on the personal recording device, and the mix of personal and Town recordings on the device .... Given the Town's limited resources, the Town cannot waive any further costs associated with this request for records." The Town further states that its hourly rate of "$25.00/hour (reduced from $25.75/hour) is based on the lowest paid employee capable of searching for the responsive records on the device .... "

Joseph Powers, MMC/CMMC SPR18/1443 Page 3 October 10, 2017 The Town's October 9th supplemental response In its October 9, 2018 response, the Town respectfully requests that the Supervisor allow it to charge its estimated fee of $733.50 to search for responsive records" ... given the inordinate resources and technical difficulty involved in searching for audio recordings associated with this unique request." The Town continues to reiterate that its fee estimate is necessary to search all responsive recordings on the device which contains other "private/personal recordings." The Town notes that after a diligent review, the device includes more than 40 hours ofrecordings. The Town explains that since the prior appeal and in response to a subsequent request from Ms. Ahern seeking records from the same device, it "has engaged the assistance of an information technology consultant to further evaluate the transfer of files from the personal recording device." The Town states that it has not charged Ms. Ahern a fee for the consultant's work and will not charge a separate fee to search for records responsive to Ms. Ahern's subsequent public records request for records on the same device. In the September 11th determination, I indicated that it was unclear "if the '[t]hirty (30) hours to continue for the search for potentially responsive records' includes segregation and redaction, as [the Town] indicated that 'the records would be produced subject to withholding or redaction ... "' See September 11th determination. Based on the Town's response, it remains unclear whether the thirty hours required for searching the recording device for responsive documents includes segregation and redaction time. The Town must clarify this matter. Further, in its response, the Town indicates that the personal recording device which contains the Charter Review Committee recordings" ... are intermingled with other non-Town business personal recordings." As a result, the Town indicates that it requires 30 hours to search the device for responsive records. Please be advised that the Town cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § lO(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Consequently, I find the Town must revise its estimate for the cost of complying with Ms. Ahern's request in a manner consistent with this order, the Public Records Law, and its Regulations. Petition for relieff rom responding to record requests In its October 9th response, the Town posits that it estimates that Ms. Ahem has sent at least 100 public records requests through an individual email and also through Muckrock. The Town indicates that in all cases it has timely responded to the requests in accordance with the requirements set forth in the Public Records Law by its records access officer. The Town assert that" ... such repeated requests, as well as Ms. Ahern's repeated follow-up inquiries regarding

Joseph Powers, MMC/CMMC SPRlS/1443 Page 4 October 10, 2017 requests that the Town has already answered, are part of an ongoing harassment campaign against the Town and its public officials, and are part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity. 950 CMR 32.06(4)(±)." The Town explains that this is true in this instance because" ... all Committee meetings minutes have been approved, have been provided to Ms. Ahern and are available on-line to all members of the Public .... Specifically, the Town has already previously responded to all of Ms. Ahern's prior requests, which are being repeatedly sent to the Town solely in an effort to expend the Town's limited staff resources and/harass Town officials." Please note that petitions for relief of a custodian's obligation to respond to public record requests must be made in accordance with G. L. c. 66, § 10( c ). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the Town is ordered to provide Ms. Ahern 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: Jude Ahern