Public Records v. Sherborn, Town of - Town Administrator (SPR 20202180)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 24, 2020 SPR20/2180 David Williams Town Administrator Town of Sherborn 91 Washington Street Sherborn, MA 01770 Dear Mr. Williams: I have received the petition of an anonymous requestor appealing the response of the Town of Sherborn (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, the requestor sought: “1. Any and all payroll records for [a named] Lieutenant of the police department from January 1, 2019 to the current date. 2. All email communication, text messages, internal memos and any notes sent or received between [a named] Lieutenant [and other named individuals] mentioning pay, additional pay, stipend, increase in pay, salary, acting chief, chief, chief of police, lieutenant, complaint, citizen, or conflict from January 1, 2019 to the current date. 3. Any and all expenditures and or payroll records, receipts, email correspondence, text messages, purchase orders, accounts payable and/or receivable, vouchers, itemized lists, order forms or any other document related to clothing allowance for each individual police department employee from January 1,2017 to the current date. 4. Any and all town policy, procedure, rule, regulation, by-law, or any other document that identifies police department purchasing or mentions audit, guidance, required signatures, or conflict.” Prior appeal The requested records were the subject of a prior determination. See SPR20/2039 Determination of the Supervisor of Records (November 4, 2020). In my November 4th determination, I ordered the Town to provide a response to the request consistent with the Public Records Law and its Access Regulations. Unsatisfied with the response, the requestor appealed and SPR20/2180 was opened as a result. 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

David Williams SPR20/2180 Page 2 November 24, 2020 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 - 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 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. 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 November 6th Fee Estimate Response On November 6, 2020, the Town’s Legal Counsel, Christopher Brown of Petrini & Associates, P.C., provided a response which indicates that responsive records will need to be redacted and/or withheld under G. L. c. 93H, as it operates through Exemption (a), as well as Exemptions (c) and (d), and the common law attorney-client privilege. The Town provided a detailed fee estimate, totaling $4,805.00 for 51 hours of time to provide the requests. In its November 6th response, the Town indicates that it would require 37 hours to search for responsive records. However, it is unclear what tasks are necessary to locate these records. The Town must clarify this.

David Williams SPR20/2180 Page 3 November 24, 2020 Further, the Town estimates it will be necessary to review and redact responsive records. However, it is uncertain how redaction of all of the different types of responsive records is required by law. Specifically, it is not clear which records require redaction by G. L. c. 93H or the attorney-client privilege. Please note that under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). Additionally, the Town has assessed hourly rates of $125 for an IT consultant and $55 for the Town Administrator. The Town may not assess an hourly rate that exceeds $25 unless it has received approval to do so from the Supervisor. G. L. c. 66, § 10(d)(iii). The Town must clarify its justification for assessing these hourly rates. For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee assessed in its November 6th estimate is consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Town is ordered to provide the requestor with a response in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: publicrecordssherbornma (via email) Christopher Brown, Esq., Petrini & Associates, P.C.