Jack Rybicki v. Newbury, Town of - Town Administrator (SPR 20210195)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 11, 2021 SPR21/0195 Tracy Blais Town Administrator Town of Newbury 25 High Road Newbury, MA 01951-4799 Dear Ms. Blais: I have received the petition of Jack Rybicki appealing the response of the Town of Newbury (Town) to his requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 23, 2020; January 7, 2021 and January 11, 2021, Mr. Rybicki requested several categories of records pertaining to the Town’s Transfer Station and G. Mello, including correspondence; contracts; cash/gross revenue generated; a tally of YOY tons of household trash removed, including metals and glass; stickers issued; public solicitation by public bid process; and correspondence between Town Counsel and Town leaders pertaining to overview, review, guidance or contractual concerns. As a result of the Town’s late responses, incomplete responses, and the fee estimate for $175.00, Mr. Rybicki petitioned the Supervisor of Records (Supervisor), and this appeal was opened. After this appeal was opened, on February 4, 2021, the Town’s Legal Counsel, Lisa Mead of Mead, Talerman & Costa, LLC, provided Mr. Rybicki and this office with a response to his requests. 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 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

Tracy Blais SPR21/0195 Page 2 February 11, 2021 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). In her February 4th response, Attorney Mead indicates that the Town provided Mr. Rybicki with all the responsive records in its possession to his December 23rd request, the January 7th request, and certain of the records in his January 11th request, except for three categories of records. The Town indicates it has no records regarding: • By written word of the apparent mutually to Transfer Station operations and all monetary arrangement therein now in existence between G. Mello and the Town of Newbury; • The number of Transfer Station Stickers issued and the amount collected from citizens for same; and • All RFP’s or Open Bid documents or written solicitations relating to Transfer Station business operations since 2010. Under the Public Records Law, the Town is not required to create records in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26); see also 32 Op. Att’y Gen. 157, 165 ----------------------- (May 18, 1977). The Town’s (un-dated) fee estimate If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town provided a fee estimate for Mr. Rybicki’s January 11, 2021 request for “correspondence between [T]own [C]ounsel and Town leaders in regards to overview, review, guidance, or contracts generated or agreements proposed in regards to written, oral, or contractual exchanges shared between G. Mello [sic] and Newbury since 2011 in regards to all operations at the Transfer Station…” The Town’s fee estimate states, “[t]he lowest paid Town employee capable of compiling and scanning and segregating and redacting, if necessary, the requested records is compensated on an hourly basis of $25.00 per hour. We estimate that it will take approximately 7 hours to compile these documents at a cost of $175.00.” The Town also informed Mr. Rybicki that if he wants paper copies of the records versus electronic records the cost would be $5.00 for the paper copies for a total estimate of $180.00.

Tracy Blais SPR21/0195 Page 3 February 11, 2021 Waiver of fees In his January 25, 2021 email to the Town, Mr. Rybicki asked for the Town to waive the amount of fee proposed: “I am asking the Records Access Officer in Town Administrator Tracy Blais to please waive the amount of fee proposed charged . . . due to my household income change as a result of the Covid pandemic and would find such a charge to a [sic] burden to our family and household and we thank leadership for all considerations in this respect.” In its February 4th response, the Town has decided to not waive the fees for Mr. Rybicki’s January 11th request for certain of the records. Mr. Rybicki is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order that a record custodian do so. Municipal fees 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). G. L. c. 66, § 10(d)(iii); see also 950 C.M.R. 32.06(4). ----- The Town’s fee estimate includes (7) hours of time for complying with the request; however, the Town did not explain why 7 hours of time is necessary to compile, segregate, and reproduce the records; and why the Town has not subtracted two (2) hours of time, as required by the under the Public Records Law. See G. L. c. 66, § 10(d)(iii). Neither has the Town broken- down the fee estimate to explain how much time is necessary to complete each task, and why some of the tasks cannot be performed by an employee with a lower-rate of pay than $25.00 per hour. Finally, the Town is advised that segregation and redaction of the responsive records cannot be charged unless the segregation and redaction is required by law or approved by the

Tracy Blais SPR21/0195 Page 4 February 11, 2021 Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); see also 950 C.M.R. 32.06(4). To the best of my knowledge, the Town has not filed a petition to charge fees for segregation and redaction; nor, has the Town cited any exemptions to support segregation and redaction required by law. Conclusion Accordingly, the Town is ordered to provide Mr. Rybicki with a response to his requests, in a manner consistent with this order, the Public Records Law and its Regulations 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. Mr. Rybicki may appeal the substantive nature of the Town’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Jack Rybicki Lisa L. Mead, Esq., Mead, Talerman & Costa, LLC