Morgan Louchen v. Berlin, Town of- Fire & EMS Department (SPR 20190116)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 1, 2019 SPR19/116 Paul J. Zbikowski Fire Chief Town of Berlin-Fire and EMS Department 23 Linden Street Berlin, MA 03015 Dear Chief Zbikowski: I have received the petition of Morgan Louchen appealing the response of the Town of Berlin (Town) - Fire and EMS Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Initially on October 30, 2018, Ms. Louchen requested an electronic copy of the following records sent to her via email: "[a]ny and all documentation; agreements; contracts Town Board resolutions or writings that memorialize, offer, suggest, bind or confirm the wages, fees, fiscal arrangements or financial dealings between the Town and [an identified Department employee] from January 1, 2016 through present." On October 31, 2018, the Department emailed Ms. Louchen seeking clarification of her request, so that the Department would not charge her fees for records she does not want. Ms. st\ Louchen responded on November "I have done my best describing the records that I am looking for. Please email the records which you feel are responsive to my request." 13th 1st\ Via email on November and November the Department provided information pertaining to benefits and compensation of the identified Department employee, including pay rate, classification for pay grade, vacation and other benefits outlined in the personnel policies of the Town, and the pay classification spreadsheet. It is my understanding that the Department did not charge any fees to provide the information. No records Upon Ms. Louchen's inquiry, on November 16t\ you confirmed that no employment contract exists for the position held by the identified Department employee. The duty to comply with requests for information extends only to those records that exist and are in the custody 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

Chief Paul J. Zbikowski SPR19/116 Page 2 February 1, 2019 the custodian ofrecords at the time of the request. See G. L. c. 4, § 7(26). There is no obligation to create a record in response to a public records request. 32 Op. Att'y Gen. 157, 165 (May 18, 1977). The Department's December 26, 2018 response andfee estimate A review of the communications provided to this office reveals that on December 19th, Ms. Louchen made a new request for any "disciplinary records" pertaining to the identified employee. The Department provided a December 26th fee estimate for 2-4 hours of time to go through the employee's personnel file, copy records, review and redact. You informed Ms. Louchen, "[the identified individual] has been an employee here for 30 years. So, there is a lot of paper and I need to know what you are specifically requesting." The Department requested that Ms. Louchen send a check for $160.00 for 2 hours of your time as Keeper of the Records at $75 per hour, and $10.00 for copying fees. As a result of the Department's December 26th fee estimate for the December 19th request, Ms. Louchen petitioned the Supervisor of Records (Supervisor) on January 17, 2019, and this appeal was opened. In her petition, Ms. Louchen objects to the $75 hourly rate, and the 2-4 hours of time to comply with the request. She asserts, "[t]his seems excessive for one employment file. Finally, since my request is being made by electronic means, I believe that there should be no copying costs." 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. 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, § lO(d)(iii). The Town's December 26th estimate does not indicate whether it waived the first two hours of employee time, and whether it was required to do so when it provided the estimate to Ms. Louchen. Your estimate provides an approximation of 2-4 hours of time to perform several tasks, such as searching through the file, copying, review (segregation) and redaction, but does not explain the time required per task. The Department must revise its fee estimate to show the breakdown of time per task. 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. G. L. c. 66, § lO(d)(iii). The Department assessed $75 per hour, which is your hourly rate as the Department's Keeper of the Records and Records Access

Chief Paul J. Zbikowski SPR19/116 Page 3 February 1, 2019 Officer. In a January 23rd discussion, a Public Records Division staff attorney explained that the Department's hourly rate for the tasks necessary to providing the records is statutorily limited to $25 per hour. Please note, a municipality may charge more than $25 per hour if such rate is approved by the Supervisor through a petition filed under G. L. c. 66, § 10(d )(iv). To the best of my knowledge, the Department has not filed a petition to charge $75 per hour to conduct the tasks necessary to provide the records. Consequently, I find that the Department must revise its hourly rate to $25 per hour for this request. The Department was also advised during the telephone discussion with this office, that 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, § lO(d)(iii); see also 950 C.M.R. 32.06(4). It is unclear whether the records contain information restricted by law. Therefore, the Department may not assess a fee for segregation or redaction unless the record(s) or portions of the record(s) are restricted by law. Burden ofc laiming exemption(s); duty to segregate Furthermore, the Department did not cite any exemptions to withhold records or portions of records that may be responsive. The Department is advised, under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). If the Department is withholding records, after identifying the responsive records in a search, it must identify what type of record( s) it has in its possession that are responsive and that the Department withheld under one or more exemptions in the Public Records Law. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). Further, the Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § lO(a). Clarification ofa request A review of Ms. Louchen's original October 30, 2018 request shows that she requested records that "memorialize, offer, suggest, bind or confirm wages, fees and fiscal arrangements or financial dealings between the Town and the identified Department employee from January 1, 2016 to [October 30, 2018; date of the request]." Ms. Louchen was provided with records responsive to her October 30th request. On December 19th, she made a request for "disciplinary information" regarding the identified Department employee, which is a new and different records request. Then, in her

Chief Paul J. Zbikowski SPR19/116 Page 4 February 1, 2019 ih January 1 petition, Ms. Louchen objects to the Department's estimate as excessive for "one employment file." I urge Ms. Louchen to clarify her December 19th request with the Department, and for the parties to continue to work together to satisfy the request. Conclusion Accordingly, the Department is ordered to provide a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Morgan Louchen Brian Maser, Esq., KP Law, P.C.