Susan T. Munford v. Kingston, Town of--Town Clerk (SPR 20191137)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 20, 2019 SPR19/1137 Thomas J Calter III Kingston Town Clerk 26 Evergreen Street Kingston, MA 023 64 Dear Mr. Calter: I have received the petition of Ms. Susan Munford appealing the response of the Town of Kingston (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Ms. Munford requested "copies of all itemized invoices (showing cases an billable hours) received from the law firms of Clifford and Kenny from 2016 through the present date" as well as "copies of the cancelled checks of the payments made to Clifford and Kenny for the same time frame." On May 27, 2019, the Town responded, providing Ms. Munford a fee estimate. The Town estimated that the total cost of providing the requested records would be $587.50. Unsatisfied with the response, Ms. Munford petitioned this office and SPR19/1137 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, § lOA(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, § lO(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 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. 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 J Calter III SPR19/1137 Page 2 June 20, 2019 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(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 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, § IO(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, § 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, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). 950 C.M.R. 32.06(4 )(g) provides that "petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records." The Town's March 2ih Response In their March 27, 2019 response, the Town indicated that "[b]ased on the Town's good faith estimate, a $12.50 fee will be required which is based on an estimated time of one half (1/2) hour at twenty-five dollars ($25.00) an hour for each invoice to complete [Ms. Munford's] request. The scope of [the] request covers thirty-nine (39) invoices. Therefore, the total estimate for complying with [the] request for invoices is $487.50. The Town's good faith estimate to produce the cancelled checks is an additional four (4) hours, which results in an additional $100.00, bringing the total good faith estimate to $587.50." The Town further stated that "portions of the responsive record will be redacted pursuant to G.L. c. 4, § 7(26), G.L. c. 214 §lB and/or as required by law." I find the Town must explain why half an hour will be needed to produce each invoice and four hours will be needed to produce the cancelled checks. Specifically, the Town must describe how much time will be needed to search for the records versus how much time will be

Thomas J Calter III SPR19/1137 Page 3 June 20, 2019 needed to segregate and/or redact. The Town must also explain with specificity whether the redactions are required by law. See G. L. c. 66, § 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, § lO(d)(iv)); 950 C.M.R. 32.06(4)(g). Conclusion Accordingly, the Town is ordered to provide Ms. Munford 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: Ms. Susan Munford