Kevin J. Calnan v. Ipswich Town Manager (SPR 20200838)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 4, 2020 SPR20/0838 Chief Andre Theriault Records Access Officer Town of Ipswich Fire Department 55 Central St Ipswich, MA 01938 Dear Chief Theriault: I have received the petition of Attorney Kevin J. Calnan of the Calnan Law Office appealing the response of the Town of Ipswich Fire Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on April 30, 2020, Attorney Calnan requested, “[a] copy of all electronic mail (email) sent, received and/or stored by the Fire Chief Andrew Theriault on any and all Town devices including capable of sending and receiving electronic mail.” Attorney Calnan further notes, “I am requesting all email as indicated between the dates of March 25, 2020 up to and including April 30, 2020.” The Department responded on May 18, 2020 providing a fee estimate. Unsatisfied with the Department’s response, Attorney Calnan petitioned this office and as a result SPR20/0838 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 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, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for theNorfolk 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. 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

Chief Andre Theriault SPR20/0838 Page 2 June 4, 2020 Fee Estimates-Municipality 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 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, § l0(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)(iii); 950 C.M.R. 32.06(4). The Department’s May 18th fee estimate The Department’s May 18th response states, “[t]he Town has conducted an initial review of potentially responsive records so as to be able to prepare this response and good faith estimate.” The Department contends, “[a]lthough reference is made below to the application of the attorney-client privilege and Exemption (c) of the Public Records Law, the Town reserves the right to identify and assert any other applicable exemptions, as it conducts further search and review.” The Department cites Exemption (c) claiming, “[c]ertain records responsive to [Attorney Calnan’s] request will be withheld and/or redacted pursuant to Exemption (c) of the Public Records Law (G.L. c. 4, §7(26) permits a records custodian to withhold the following: ‘Personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.’” In its fee estimate, the Department indicates it is assessing a total fee of $600.00 for 24 hours of work at a rate of $25.00 an hour. The Department notes, “[t]he actual cost of producing the records may vary once the Town begins preparing the records for response. Upon receipt of payment in the amount of $600.00, the Town will begin the work necessary to comply with your request. It is expected that you will be provided with responsive records no later than fifteen (15) business days from receipt of payment. Please note that pursuant to 950 CMR 32.06(2)(f), you will not be provided records until all fees are paid.”

Chief Andre Theriault SPR20/0838 Page 3 June 4, 2020 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, § 10(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 Department’s response stating that it is assessing a fee for 24 hours at a rate of $25.00 an hour for time spent searching for, compiling, segregating, redacting and reproducing the requested records, it remains unclear why the Department requires 24 hours to produce responsive records. It is also not certain from the Department’s estimate how many hours were allocated to compile, segregate, redact or reproduce the records. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee assessed in its May 18th estimate is consistent with G. L. c. 66, §10(d). Conclusion This office encourages Attorney Calnan and the Department to continue to communicate to facilitate providing records more efficiently and affordably. 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 agency to produce records sought more efficiently and affordably). When preparing a fee estimate for the provision of the requested records, the Department must reduce the amount of time charged for producing the records, or provide more detail explaining why this amount of time is necessary. Any updated fee estimate by the Department must be in compliance with this determination, the Public Records Law, and its Access Regulations. Attorney Calnan may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1).

Chief Andre Theriault SPR20/0838 Page 4 June 4, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Kevin J. Calnan, Esq. Anthony Marino