John Burns v. Boston Water & Sewer Commission (SPR 20192285)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 22, 2019 SPR19/2285 Dolores Randolph Director of Communications Boston Water and Sewer Commission 980 Harrison A venue · Boston, MA 02119 Dear Ms. Randolph: I have received the petition of John Burns appealing the nonresponse of the Boston Water and Sewer Commission (BWSC) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on November 4, 2019 Mr. Burns requested "[a] list of properties who are either delinquent or had their water turned off due to nonpayment. For each property ... indicate ... the person's full name, full property address and tax delinquent amount." Mr. Burns also indicated that "it would be preferable to receive this list in excel format ... or another electronic format ... " · Tl,e 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). 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 (RAO) shall provide written, itemized, good faith estimate). Once fees are paid, an RAO must provide the responsive records. 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

Dolores Randolph SPR19/2285 Page 2 November 22, 2019 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 pa1iicular 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, § lO(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). 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, § 1O (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, § lO(b)(vii). BWSC's November 121 response " In its November 12th response, BWSC denied the request because BWSC recently transitioned to a new billing system and stated "this data request is not available at this time." Compliance with the requirements ofp roviding a response; specificity Although BWSC provided an initial response to Mr. Burns' request, the response did not otherwise comply with the Public Records Law. Pursuant to the Public Records Law, an RAO's written response must be provided within ten business days, and must also comply with the criteria listed in the statute G. L. c. 66, § lO(b). Specifically, BWSC is advised that in responding to public records requests, the RAO must "identify any records, categories of records or p01iions of records that the agency or municipality intends to withhold, and provide the specific reasons for suc.h withholding, including the specific exemption or exemptions upon which the withholding is based ... " See 950 C.M.R. 32.06(3). The duty to comply with requests for records extends to those records that

Dolores Randolph SPR19/2285 · Page 3 November 22, 2019 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, § lO(a)(ii), (b )(ii). Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1O (b )(iv); see Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. RAOs must meet their burden of demonstrating how redacted information is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Therefore, where BWSC redacts any information from the records or withholds records, it must claim an exemption with specificity. See G. L. c. 66, § 1O (b )(iv) ( custodian has the burden of establishing the applicability of an exemption). BWSC's response did not contain the specificity required in a denial of access to public records. Although BWSC indicates that "[it] recently transitioned to a new billing system [and] this data request is not available at this time," it is unclear when the billing system will be available'to produce the responsive records and which exemption(s) under the Public Records Law BWSC is claiming to withhold such record or how the exemptions apply to withhold the requested record. In an email to this office appealing BWSC's response, Mr. Burns indicated that he "looking for the public records with respect to 2019 water shutoff or delinquent payments [and] is agreeable to receiving responsive older records from 2019 with respect to the water shutoff. .. " This office encourages Mr. Burns and BWSC to communicate further to facilitate providing the records more efficiently and affordably. See G. L. c. 66, § lO(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). Conclusion Accordingly, BWSC is ordered to provide Mr. Burns a response in a manner consistent with this order, the Public Records Law, its Regulations 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. Munay Supervisor of Records cc John Burns