Ric Oliveira v. Swansea, Town of - Town Clerk (SPR 20192186)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 8, 2019 SPR19/2186 John McAuliffe Town Clerk Town of Swansea 81 Main Street Swansea, MA 02777 Dear Mr. McAuliffe: .I have received the petition of Richard Oliveira appealing the response of the Town of Swansea (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R .. 32.08(1). Specifically, on July 18, 2019, Mr. Oliveira requested to inspect or obtain copies of the following records: [1] A list of all public employee staff members of the district including their titles, salaries and estimated benefit packages, stipends, travel and other reimbursements for all employees dating back to 2012 with an annual summary provided for each. [2] ... a copy of all services provided to the Swansea Water District, including any RFP's and independent contract work for any inside or outside work recorded in account payables since 2012. [3] All correspondence between the Swansea Water District, Town officials, DEP, EPA and State officials including Representatives and Senators concerning the Palmer River, its suitability for extension and any environmental concerns raised in agencies over the desalination plant process. [4] ... a full listing of chemicals and volume purchased as well as the RFP process involved in the process dating back to 2012. [5] ... all correspondence regarding Solar Panels agreements, rents, leases or transfers of any lands since 2012. [6] ... any and all information or proposals, processes or recommendations worked out by consultants or any other former employee of the department specifically any correspondence between the SWD and former Commissioner ... regarding water quality. [7] ... meeting minutes of monthly board meetings and all agendas ever mailed out dating back to 2012. 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

John McAuliffe SPR19/2186 Page 2 November 8, 2019 According to Mr. Oliveira, he was not given an opportunity to inspect all the records responsive to his request. Subsequently, on October 9, 2019, Mr. Oliveira requested the following records: [1] Any calculations or reports concerning holding the Swansea Water District Election on the same date as Town Elections as mentioned by Chairman Kitchen in the news story Oct. 9, 2019 in the Spectator. [2] A copy of the town attorney's repmi on the Selectmen's role in regards to the Swansea Water District as requested by Selectmen including why Mass General Law 23B is not applicable as far as investigation as brought up by members. oft he audience. [3] ... the justification for the Selectmen not utilizing the Board of Health to investigate water quality issues .... [4] ... all services and town employee expenditures and work on any public processes provided to the Swansea Water District, including collections of any taxes, assessors, any in-kind work and any and all work provided annually to The Swansea Water District by the town of Swansea. [5] All correspondence between the Swarisea Water District and Town officials since July of 2019. The Town responded on October 22, 2019, providing a fee estimate. Unsatisfied with the Town's response, Mr. Oliveira petitioned this office and this appeal, SPR19/2186, 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. If there are any fees associated with a response a w1:itten, 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.

John McAuliffe SPR19/2186 Page 3 November 8, 2019 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 paiiicular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photoc;opy of a public record. G. L. c. 66, § 10(d )(i). 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, § 10(d )(iii). Where appropriate, municipalities may include as paii 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, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). Tlte Town's October 2211d cost estimate In its October 22, 2019 response, the Town states that this request " ... is subject to a charge for the first four hours of estimated time spent searching for, compiling, segregating, redacting and reproducing the requested records at an hourly rate of $22.54 which is the hourly wage of the lowest paid employee who is capable of performing this task ...." The Town provides the following estimate: 4 Hours @ $22.54/Hour; Description of work: • A list of all people receiving benefits or salaries as well as estimated benefit packages, stipends, travel and other reimbursement. • Please clarify on 'benefit and benefits packages'. • The travel reimbursement and stipends of staff since 2012 including flights, hotels and expenditures on official SWD business. • A copy of the solar deals with the. SWD including copies of RFP's. • Please clarify on 'copy oft he solar deals', • All executive session minutes from 2012 to present. • Non-disclosure forms signed by employees upon hiring and leaving the SWD. • A yearly summary of cash receipts for all income streams at the SWD. • Please clarify to which year(s). Total= $90.16

John McAuliffe SPR19/2186 Page 4 November 8, 2019 Fees to search for, compile, segregate, redact or reproduce a record request The Regulations provide that in cases where it is necessary to reproduce the requested records, a records access officer may charge a fee to search for, compile, segregate, redact or reproduce a record requested based on the hourly rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, § lO(d); see also 950 C.M.R. 32.07(2). Additionally, the reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. Id. A municipality may not charge for segregation and redaction unless required by law or a petition has been filed and approved by the Supervisor of Records. G. L. c. 66, § 10( d); see also 950 C.M.R. 32.06(4). Based on the Town's response, stating that it is assessing a fee for 4 hours at a rate of $22.54 an hour for time spent searching for, compiling, segregating, redacting and reproducing the requested records, it remains unclear why the Town requires 4 hours to produce responsive records. It is also not ce1iain from the Town's estimate how many hours were allocated to search, compilation, segregation, redaction and/or reproduction of the records. The Town must clarify these matters. If the Town is assessing a fee for segregating or redaction, please note that under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). I am not aware that the Town has submitted a petition under G. L. c. 66, § 10( d)(iv). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. See 950 C.M.R. 32.06(4)(g). As such, I find the Town must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. Please note 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. See G. L. c. 66, § 10( d)(iii). Where the Town requests that Mr. Oliveira clarify certain aspects of his requests, this office encourages Mr. Oliveira and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § lO(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 municipality to produce records sought more efficiently and affordably). Inspection of a public record In Mr. Oliveira's written requests, he sought" ... an opportunity to inspect or obtain copies of ... " the requested records. Mr. Oliveira also indicates in his appeal petition that on

John McAuliffe SPR19/2186 Page 5 November 8, 2019 multiple occasions, he was given an opportunity to inspect certain records but encountered difficulties after "SWD attempted to have [him] barred from the building ... " With respect to inspection of public records, the Public Records Law states that: a records access officer appointed pursuant to section 6A, or a designee, shall at reasonable times and without unreasonable delay permit inspection or furnish a copy of any public record as defined in clause twenty-sixth of section 7 of chapter 4, or any segregable portion of a public record, not later than 10 business days following the receipt of the request. .. G. L. c. 66, § lO(a). Further, a records access officer must permit inspection of all public records within the custody and control of the custodian at reasonable times and without unreasonable delay, provided that the requestor must reasonably describe the public records sought. 950 C.M.R. 32.06(2)(a); G. L. c. 66, § lO(a)(i). Where Mr. Oliveira has been permitted to inspect requested records on previous occasions, it is unclear how the Town cannot make the records available for Mr. Oliveira's inspection. The Town must clarify this matter. Additionally, under the Public Records Law Regulations, "as an alternative to obtaining copies of records from a records access officer a requester shall be permitted to ... use a personal device such as a camera or portable scanner to copy records." 950 C.M.R. 32.07(1)(b). Additionally, in his appeal petition, Mr. Oliveira claims that" ... the Swansea Water District has already been in violation of my previous FOIA request from July as they did not make all information requested available concerning staff, solar contracts and compensations. It was incomplete and hiding information including last names of employees." Please be advised, 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 ofrecords at the time of the request. See G. L. c. 66, § 1O (a)(ii). Also, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Mr. Oliveira also states that" ... [w]e believe that the use of public funds, public school and police as well as town resources to hold the Swansea Water District Election is within the qualifications of 'using public resources' and ballot qualifications and should have to follow standard election polling place policies. At the very least, it is worth an exploration on your part as we seek an open, fair, inclusive and vibrant election which we do not have. We have petitioned the SWD to move their elections to coincide with the towns and they refuse saying 'they like it the way it is.' We do not believe they can use public resources and even close the school for it, and not follow state election laws .... That is one issue we seek an answer from your office." Mr. Oliveira is advised that this matter falls outside the scope of the Public Records Law.

John McAuliffe SPR19/2186 Page 6 November 8, 2019 Conclusion Accordingly, the Town is ordered to provide Mr. Oliveira with a response to the request, provided 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. Murray Supervisor of Records cc: Richard Oliveira