Karin Sutter v. Natick, Town of - Town Administrator (SPR 20192055)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 22, 2019 SPR19/2055 Melissa Malone Town Administrator Town of Natick 13 East Central Street Natick, MA 01760 Dear Ms. Malone: I have received the petition of Karen Sutter appealing the response of the Town of Natick (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Sutter requested "all emails with the word Sutter [in] the subject or body from 2009 to present." Previous appeals This request was the subject of previous appeals. See SPRl 9/1085 Determination of the Supervisor of Records (June 12, 2019) and SPR19/1355 Determination of the Supervisor of Records (July 17, 2019). In my July 17111 determination, I directed the Town to demonstrate whether it responded to the February 21st request within ten business days following receipt of the request in compliance with G. L. c. 66, § lO(e) and 950 C.M.R. 32.06(2)(c). Fee estimates - municipalities 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)(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, 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

Melissa Malone SPR19/2055 Page 2 October 22, 2019 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). 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, § 1O (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. 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). Once fees are paid, a records custodian must provide the responsive records. The Town's August 2,ut response In its August 2, 2019 response, the Town indicates that" ... on February 20, 2019, Ms. Sutter sought copies of all emails to or from herself, in the possession of the Town of Nat ick, and all emails which contained the word 'Sutter' in the body of the email, from 2009 to the present. On February 21, 2019 the Town Clerk responded to that request noting that the request would result in 27,645 emails which would have to be reviewed for both responsiveness, and for whether they were exempt from disclosure, and also potentially be redacted." The Town states that in its response, it" ... asked Ms. Sutter whether she would care to refine her request, and if she would like a cost estimate for such request." The Town posits that "[i]t is unclear whether Ms. Sutter's response came via email or via the phone, but the Town believes that the request was changed to emails with 'Sutter' in the body of the email, from 2009 to the present." The Town asserts that " [s ] uch request did not limit the amount of potentially responsive emails to be reviewed .... It is unclear whether further action was requested from Ms. Sutter or not. The Town has no fmiher records of correspondence from her on this matter. On June 7, 2019, in an effmi to be thorough, the Town Clerk sent Ms. Sutter an email ..." with a

Melissa Malone SPR19/2055 Page 3 October 22, 2019 cost estimate to produce responsive records. The Town states that "[g]iven the incredible volume of materials requested, the huge amount of time such production and review would take the Town, and the fact that in good faith it was working with Ms. Sutter to reduce or narrow the request, and that the Town has no record of Ms. Sutter responding to its last communication in this matter, prior to June 7, [it] requests that the Supervisor reconsider its determination that it cannot charge the fees ... " in its June 7111 cost estimate. Based on the Town's response, coupled with Ms. Sutter's petition, it remains unclear when Ms. Sutter amended her public records request and whether she intended the amended request to be deemed as a new request. Ms. Sutter must clarify these matters. Conclusion Accordingly, in light of the above, Ms. Sutter must clarify these matters. Sincerely, ~.~ Supervisor of Records cc: Karin Sutter