Brian Gosse v. Georgetown Town Administrator (SPR 20200668)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 1, 2020 SPR20/0668 Kerri A. McManus Town Clerk/Records Access Officer Town of Georgetown 1 Library Street Georgetown, MA 01833 Dear Ms. McManus: I have received the petition of Brian Gosse appealing the response of the Town of Georgetown (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on April 1, 2020, Mr. Gosse requested: 1. The petition to the Selectmen mentioned in Tom Howard’s report issued June 15, 2019; 2. The RFP and/or total cost of services for Tom Howard of Howard Consulting and Investigations 2019; 3. A list of gift funds and balances for 2018, 2019 and to date in 2020; and 4. Current Erie 4/Town of Georgetown Contract; and 5. The acknowledged “after-action report” regarding the 2018 Thurlow Street boat accident (supporting documentation can be provided if warranted). By email on April 9, 2020, the Town provided Mr. Gosse with a fee estimate for 2 hours of work at $20 per hour for a sub-total of $40.00, and the cost of copies at $.05 per page for approximately 22 pages at a sub-total of $1.10. The total estimated cost is $41.10. After Mr. Gosse paid the fee, on April 14th the Town provided Mr. Gosse with the responsive records via email. As a result of the fee estimate and not receiving the specific records he requested, Mr. Gosse petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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, § 10A(d); 950 C.M.R. 32.03(4). “Public 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

Kerri McManus SPR20/0668 Page 2 May 1, 2020 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). Fees – Municipalities 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). Once fees are paid, a records custodian 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 a black and white single or double-sided photocopy 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 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 how 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 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). The Town’s April 9, 2020 fee estimate The Town’s April 9th fee estimate includes: “2 hours of search time at $20.00 per hour for a total of $40.00, and $1.30 for copies of 26 pages of records at $.05 per page totaling $1.30.” It is my understanding from a review of the emails exchanged between the Town and Mr. Gosse that the records were provided via email, and as such the Town refunded Mr. Gosse the cost of copies. In his petition, Mr. Gosse questions why he was charged fees to provide him with records for this particular request, when he and other requestors have received records free of charge in the past. Under the Public Records Law, the records access officer may waive or reduce the amount of any fee charged for the production of records but it not required to do so. See G. L. c. 66, § 10(d)(v); see also 950 C.M.R. 32.07(2)(k). In addition, please be advised the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request.

Kerri McManus SPR20/0668 Page 3 May 1, 2020 Pertaining to the fee estimate from the Town, Mr. Gosse questions the hourly rate of $20.00 per hour and what Town Department performed the tasks necessary to provide him with the records to assess a $20.00 per hour rate. A records custodian must use the lowest paid employee’s hourly rate for an employee who has the necessary skill required for the tasks undertaken. Id. Municipalities may charge more than $25 per hour, but such rate must be approved by the Supervisor under a petition under G. L. c. 66, § 10(d)(iv). I find that the Town must clarify whether it has assessed the hourly rate of the lowest paid employee who conducted the tasks, and explain what tasks were untaken to support the two hours of time at $20.00 per hour. Also at issue in this appeal, Mr. Gosse contends that he did not receive the particular records requested and believes that the Town has further records responsive to his request. Mr. Gosse’s April 15, 2020 email to you, he details what records he believes were not provided to him. Request Number 1: Mr. Gosse indicates that nineteen members of the Town’s Fire Department sent a signed document to the Board of Selectmen stating that they did not condone the behavior of the Union in publicly calling out Fire Chief Mitchell pertaining to the issues raised in the Howard investigation report issued in June 15, 2019. Mr. Gosse states that he was not provided with this document. Request Number 2: Mr. Gosse asserts that the Town did not provide him with the RFP and/or total cost of services for Tom Howard. Request Number 3: Mr. Gosse indicates he did not receive the 2018, 2019 and the 2020 gift accounts and balances to date for “Camp Denison; COA; Fire Donations; GAA Turf Field; Georgetown Historical Commission; Healthy Parms Host; Highway; Hwy-Gardeners; Public Safety; Selectmen; Memorial gifts; Sawyer Fund (non-expendable and interest); and the Peabody Fund.” Request Number 4: Mr. Gosse confirmed he received the Erie 4/Georgetown contract dated June 30, 2019; however, it is his contention that the Selectmen’s minutes from the January 13, 2020 meeting indicated that the Town extended the contract for 10 years. Mr. Gosse seeks the document that supports that contract extension. Request Number 5: Mr. Gosse asserts that on March 26, 2019 he requested the After Action Report on the 2018 Thurlow Street boat accident, and was informed by Fire Chief Mitchell that the report would be released at the appropriate time. Mr. Gosse contends that an “after action report” must exist and should have been provided to him. Based on Mr. Gosse’s April 15th email to the Town, I find that the Town must clarify whether it has additional records responsive to the request.

Kerri McManus SPR20/0668 Page 4 May 1, 2020 It is my understanding that Mr. Gosse would like to work with the Town to satisfy the requested records he did not receive. I encourage Mr. Gosse and the Town’s Records Access Officer to continue to communicate in order to produce the records requested. Conclusion Accordingly, the Town is ordered to provide Mr. Grosse with a response to his requests in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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: Brian Gosse