Cindy L. Christiansen, PhD v. Milton, Town of - Town Clerk (SPR 20201396)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 28, 2020 SPR20/1396 Susan M. Galvin Town Clerk Town of Milton 525 Canton Avenue Milton, MA 02186 Dear Ms. Galvin: I have received the petition of Cindy L. Christiansen appealing the response of the Town of Milton (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on May 15, 2020, Ms. Christiansen requested “any records between town administration personnel or the select board and Dr. Erica Walker of Harvard and Boston Universities. [sic] during calendar year 2019…” The Town provided a fee estimate to Ms. Christiansen on June 1, 2020. Unsatisfied with the Town’s response, Ms. Christiansen petitioned this office, and SPR20/1396 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, § 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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

Susan M. Galvin SPR20/1396 Page 2 August 28, 2020 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 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 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, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Town’s June 1st fee estimate In its June 1st fee estimate, the Town states “it will take approximately two (2) minutes to review, segregate and possibly redact the 136 records…4.5 hours to review all of the records…we will only charge $25 per hour to perform the services described above…you will not be charged for the first two hours of those services…((5.5 hours – 2 hours)*$25) $87.50. The Town explains “[t]he records must be segregated in order to determine whether any statutory exemptions apply or if any documents are subject to attorney-client privilege.” The Town also explains it took one hour of search time to find the responsive records. In her appeal, Ms. Christiansen contends “[t]here likely are 17 or fewer unique emails that will need to be reviewed not 136 as the Town claims…” Ms. Christiansen explains “[t]he Town wrote that their initial search identified 136 emails and took 1 hour. All of the original emails will have gone to five select board members, one MCAC representative, one ANAC Chair, and one town administrator, so eight emails with the identical text in the body of the message. Any reply to the original email also would have been distributed to eight town officials' email address.” Based on the Town’s response, it has not explained with specificity why the indicated amount of time is necessary for producing the requested records. Specifically, the Town must clarify what tasks were necessary to search for the requested records. Further, the Town must clarify why the requested records likely contain attorney-client privilege, or other statutory exemptions, requiring segregation and redaction. The Town is advised that a municipality is not permitted to charge for time spent segregating records unless segregation is required by law or

Susan M. Galvin SPR20/1396 Page 3 August 28, 2020 approved by the Supervisor of Records under a petition. See G. L. c. 66, § l0(d)(ii); 950 C.M.R. 32.06(4). Order Accordingly, the Town is ordered to provide Ms. Christiansen with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations as soon as is 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: Cindy L. Christiansen