Rob Fasulo v. Marshfield, Town of - Office of the Town Clerk (SPR 20202555)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 7, 2021 SPR20/2555 Narice Casper II Town Clerk Town of Marshfield 870 Moraine Street Marshfield, MA 02050 Dear Ms. Casper II: I have received the petition of Rob Fasulo appealing the response of the Town of Marshfield (Town) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 12, 2020, Mr. Fasulo requested an electronic copy of the Town’s voter list. The Town provided several responses on November 12, 2020, including a fee estimate. Unsatisfied with the Town’s responses, Mr. Fasulo petitioned this office and this appeal, SPR20/2555, was opened as a result. While this appeal was pending, the Town provided a supplemental response on December 22, 2020. Fee estimate – 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 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

Narice Casper II SPR20/2555 Page 2 January 7, 2021 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 12th and December 22nd responses In one of its November 12th responses, the Town explains that it “. . . does not supply copies of its voter list electronically due to the amount of personal information provided which can be misused. The $25.00 cost reflects the cost of a thumb drive and mailing. In the alternative you can mail [the Town] a thumb drive and a self-addressed stamped envelope. You can also make an appointment and come by to provide a thumb drive in its sealed original packaging and [the Town] will gladly provide you with the requested material. . . . Estimated Media Cost: $25.00[.]” After Mr. Fasulo inquired why the records could not be provided electronically, the Town explained that “[t]he problem lies in the amount of personal information in a voter record and the possibility of the contents of that list being misused. . . . I understand that a voter list is a public record. [The Town] understand[s] [its] obligation to provide you that list. [It] will do so via either a thumb drive or a paper record. [The Town] can print you out a list and charge you the .05 per page but we both know the thumb drive is significantly less expensive and would be more practical for you. It is [the Town’s] practice and has always been [its] practice to provide voter lists even those inhouse via a thumb drive. . . .” In an email correspondence, Mr. Fasulo states “[a]s an alternative can you upload to Google Docs, Dropbox or whatever file hosting your municipality uses and provide me the link?” In the Town’s December 22, 2020 supplemental response, the Town states that although Mr. Fasulo has requested the records be sent to a Cloud Secure file format, it has not been discussed with its IT personnel. The Town explains that “[c]onsidering the personal information contained in the materials requested, . . . [it] do[es] not have the technological knowledge to do as Mr. Fasulo has requested. Although I am sure such technology exists somewhere. It is my understanding that I do not have to create files that do not currently exist. In accordance with MGL Chapter 51, Section 55, I need only supply Mr. Fasulo with a printed copy of the voter list at cost. At more than 600 pages, the document cost would exceed $30.00 and be virtually useless to him. Preparation of voting lists; contents and arrangement; distribution; revisions Registrars shall, from the names entered in the annual register and from the names maintained on the inactive voters list, prepare voting lists for use at elections; provided, however, that such registrars shall not enter the names of women voters in separate columns or lists. In such voting lists, such registrars shall place the names of all voters entered on the annual register and those maintained on the inactive voters list and opposite to the name of each his residence and party

Narice Casper II SPR20/2555 Page 3 January 7, 2021 enrollment. . . . All first voting lists shall be printed and available for public distribution not later than the first day of July in state election years. A sufficient number of voting lists shall be printed so that they can be furnished free of charge, upon request, to all duly organized political committees, and to all political candidates for public office in the various districts in which the city or town is located and for a reasonable fee, not to exceed the cost of printing such list, to any person upon request. Names shall be added thereto or taken therefrom as persons are found to be qualified or not qualified to vote. . . . G. L. c. 51, § 55. In his November 12th request, Mr. Fasulo requested an electronic copy of the registered voter list. Please be advised that pursuant to the Public Records Law, “[t]he records access officer shall, to the extent feasible, provide the public record in the requestor’s preferred format or, in the absence of a preferred format, in a searchable, machine readable format.” See G. L. c. 66, § 6A(d). Accordingly, whereas Mr. Fasulo has indicated that he prefers to receive the records electronically, I find the Town has not demonstrated that it may charge for a thumb drive or the the production of records in hard copy at this time. Further, although the Town claims that it is concerned about personal information in the records, where the voter list is considered a public record, I find the Town has not demonstrated why it is not feasible to provide the responsive records in the requestor’s preferred format. The Town may contact its IT Department to determine whether it is possible to produce the records in any of the alternative ways suggested by Mr. Fasulo. Conclusion Accordingly, the Town is ordered to provide Mr. Fasulo with a response to the request, provided 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, LJ .d ~ ~ ~~-· 0 ~a _ ... . Rebecca S. Murray Supervisor of Records cc: Rob Fasulo