Brian DeLacey v. Malden City Clerk's Office (SPR 20191882)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

September 25, 2019 SPR19/1882

Greg Lucey

City Clerk’s Office Malden City Hall 110 Pleasant Street Malden, MA 02148

Dear Mr. Lucey:

I have received a petition from Brian DeLacey appealing the denial of the City of Malden City Clerk’s Office (City) to a request for public records, G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. DeLacey requested records from the Community Preservation Committee (CPC). The City provided a fee estimate for $950.00 on September 6, 2019. Mr. DeLacey sent an email — on September 13, 2019 appealing the City ’s fee estimate.

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 of receipt of the request. G. L. c. 66, § 10(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, § 10(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, § 10(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, § 10(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 burden of establishing the applicability of an exemption).

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 |

Greg Lucey, Super RAO SPR19/1882 Page2 — September 25, 2019

Fee estimates

If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2)(b) (a records access officer (RAO) shall provide written, itemized, good faith estimate), Once fees are paid, an RAO must provide the responsive records.

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 black and white copies for both single and double-sided — copies 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, § 10(d)(ii). 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, § 10(d)(iv). See G. L. c..66, § 10(d)(iti); 950 C.MLR. 32.06(4).

An RAO may not charge a fee unless the RAO provides a written response in 10 business days following the receipt of the request in compliance with G. L. c. 66, § 10(b). G. L. c. 66, § 10(e). An RAO may 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 or municipality to produce records sought more efficiently and affordably. See G. L. c. 66, § 10(b)(vii).

Appeal

The City must provide a more detailed fee estimate in accordance with the Public Records Law and its Regulations. See G. L. c. 66, § 10(d)(i). It is not clear what documents would be produced to Mr. DeLacey and if the documents pertained to his public records request. The City’s fee estimate must provide clarity on what documents are being produced, reasons for possible redaction of documents, and the associated fees. Id. The City has not indicated the employee who will be searching for or segregating the records, or identified which exemptions allow for the redactions of records, or specified how the exemptions apply to the withheld records. See G. L. c. 66, § 10(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency intends to withhold, and provide the specific

Greg Lucey, Super RAO : — SPR19/1882 Page 3 , September 25, 2019

reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based...”),

In Mr. DeLacey’s September 13" response he “proposed a modification to reduce the scope of my original request, simplifying it significantly to make it easier for compliance by the custodian of these records.” If necessary, this office encourages both parties to communicate further to enable the City to provide a more refined search for Mr, DeLacey. See G. L. c. 66, § 10(b)(vii) (a municipality 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 municiality to produce records sought more efficiently and affordably).

Order

Accordingly, the City is ordered to provide Mr. DeLacey with a response and fee estimate 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. Mur mia aad,

Supervisor of Records

ce: Brian DeLacey