Craig Lampert v. Georgetown, Town of - Town Clerk (SPR 20201962)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 26, 2020 SPR20/1962 Kerri Ann McManus Town Clerk Town of Georgetown 1 Library Street Georgetown, MA 01833 Dear Ms. McManus: I have received the petition of Craig Lampert 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 October 12, 2020, Mr. Lampert requested, “a copy of any and all communications to and/or from the former [named] Select-Chair … regarding the Disclaimer of Interest AFSCME Council 93 and the Town of Georgetown, the Full-Time, Part-Time, on-call Firefighters Unit and activities of the Union, between the dates of October 1, 2016 and July 1, 2019.” Unsatisfied with the Town’s response, Mr. Lampert appealed and SPR20/1962 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); 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 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 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 Ann McManus SPR20/1962 Page 2 October 26, 2020 ($.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 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). The Town’s August 5th Fee Estimate In its August 5th response, the Town detailed a breakdown of the fee estimate of $200.00 as follows: 8 hours to search and segregate @ $25.00 per Hour Cost = $200.00. The Town stated, “[t]he employee search and segregation time quoted above is charged at the hourly rate of the lowest paid person capable of compiling the responsive records, in accordance with 950 CMR 32.07(2)(i). Such hourly rate shall not exceed $25.00/hour unless otherwise authorized by the Supervisor of Records. Because the Town has less than 20,000 residents, you will be charged for all hours of work associated with this request, pursuant to 950 CMR 32.07(2)(m). The 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 $200.00, the Town will begin the work ...” The Town’s fee estimate has not explained with specificity why the indicated amount of time is necessary for producing the requested records. The Town must detail how much time is needed to search for records and how much time is needed to segregate and/or redact. Additionally, the Town must indicate which tasks are required to complete its search and segregation of the records. Conclusion Accordingly, the Town is ordered to provide Mr. Lampert with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations

Kerri Ann McManus SPR20/1962 Page 3 October 26, 2020 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. Murray Supervisor of Records cc: Craig Lampert