Colman Herman v. Cape Ann Transportation Authority (SPR 20191579)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 21, 2019 SPR19/1579 Felicia Webb Public Records Officer Cape Ann Transportation Authority 3 Pond Rd. Gloucester, MA 01931-0780 Dear Ms. Webb: I have received the petition of Colman Herman appealing the response of the Cape Ann Transportation Authority (CATA) to a request for public records. G. L. c. 66, § lOA; see also .950 C.M.R. 32.08(1). Specifically, Mr. Herman requested from CATA expense records incurred by an identified individual, CATA's reimbursement policy, and a certain contract within the possession of CATA. CATA provided a response and fee estimate on August 6, 2019. Mr. Herman sent an email to our office appealing CATA's fee estimate and this appeal was opened. Public Records Law Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days ofreceipt of the request. G. L. c. 66, § lO(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § lO(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10( a)(ii), (b )(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § lO(b)(iii). 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) (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 ... "); 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 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

Felicia Webb, RAO SPR19/1579 Page 2 August 21, 2018 burden of establishing the applicability of an exemption). Fee estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2)(b) (a records access officer shall provide written, itemized, good faith estimate). Once fees are paid, a records access officer must provide the responsive records. An agency 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 black and white copies for both single and double-sided copies of a public record. G. L. c. 66, § lO(d)(i). Agencies may not assess a fee for the first four hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10( d)(ii). Where appropriate, agencies 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, agencies 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, § 10(d )(iv). See G. L. c. 66, § 10(d )(iii); 950 C.M.R. 32.06(4 ). Appeal Mr. Herman appealed CATA's fee estimate based on whether the estimate was assessed using the rate of the lowest paid employee capable of accomplishing the tasks necessary to respond to the request. In the August 6th response "CATA confirms the $25 an hour assessed is representative of the lowest paid employee who has the necessary skill to perform the tasks required. Felicia Webb, the public records officer, is the lowest paid employee with the necessary skills to perform the tasks required." Mr. Herman also appealed that he "had asked for and still want[s] the back-up receipts." CATA provided a supplemental response to this office on August 12, 2019 saying they will provide "reports, downloaded in a pdf format from the American Express website, in lieu of copying 12 months of individual statements. In addition to the Transaction Detail summary reports, the corresponding receipts for each of the charges will be provided, as was originally requested."

Felicia Webb, RAO SPR19/1579 Page 3 August 21, 2018 Based on CATA's August 6th response and August li11 supplemental response that provides additional information, I find CATA has established it provided a good faith fee estimate in compliance with the Public Records Law. See G. L. c. 66, § 10(d ). Conclusion I will now consider this administrative appeal closed. If necessary, this office encourages both paiiies to communicate further to enable CATA to provide a more refined search for Mr. Herman. See G. L. c. 66, § IO(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Sincerely, ~r~ Supervisor of Records cc: Colman Herman