Neil Hanlon v. WILLIAMSTOWN TOWN MANAGER (SPR 20210230)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 12, 2021 SPR21/0230 Jason Hoch Town Manager Town of Williamstown 31 North Street Williamstown, MA 01267 Dear Mr. Hoch: I have received the petition of Sophia Han of WAMC Northeast Public Radio appealing the response of the Town of Williamstown (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 15, 2021, Ms. Han requested 14 categories of communications regarding the Town’s Select Board, the Williamstown Police Department and certain identified individuals, from the last 24 months. The Town provided a response to Ms. Han’s request on January 29, 2021, which she appealed to this office on February 1, 2021. 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). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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 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

Jason Hoch SPR21/0230 Page 2 February 12, 2021 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 January 29th response In its January 29, 2021 response, the Town indicates that it possesses responsive records. The Town states that the records may require redaction and/or withholding under Exemption (c) of the Public Records Law, as well as the attorney-client privilege. The Town provided a fee estimate regarding its employee search time as follows: Title Hours Per Hour Cost Town Manager (to search for 4 hours $45/hour – reduced to and locate additional electronic $25.00/hour, as required by and hard copy records) law IT staff (to conduct searches of 1.5 hours $115/hour- reduced to Town’s email server for $25.00/hour, as required by responsive record) law TOTAL 5.5 Hours $137.50 The Town explained that aside from the above fee, “. . . additional charges will be assessed for the time associated with redactions required by law, such as pursuant to the attorney-client privilege. This work can only be done by an attorney familiar with the content of the responsive records at issue and who can, therefore, evaluate whether the information contained therein is privileged from public disclosure. This additional charge cannot be calculated until the initial search fee is paid, and the Town conducts the initial search of the Town’s e-mail servers, in order to ascertain the total number of potentially privileged communications. Should you proceed with this request, you will be provided with a supplemental fee estimate for the time necessary to perform redactions required by law. Note

Jason Hoch SPR21/0230 Page 3 February 12, 2021 that the Town has not sought permission of the Supervisor of Records to charge more than the $25/hour for attorney time, as permitted by law[.]” The Town further notes that “. . . the lowest paid employees capable of performing the necessary searches are paid more than $25/hour, and therefore you will be charged the maximum rate of $25/hour. Please note that because the Town has less than 20,000 residents, pursuant to the last Decennial U.S. Census (approximately 7,754), you will be charged for all hours of work associated with this request. . . . The actual cost of producing the records may vary once the Town begins preparing the records for response.” Current appeal In her appeal petition, Ms. Han states “. . . the Town has requested a fee of $137.50 in order to recover the costs of complying with the records request. However, G.L. c 66 § 10(b) states that the RAO can charge fees only if the response was made within 10 business days. WAMC filed this request on Jan. 15, 2021 at 3:24 p.m., to which the Town responded at Jan. 29. 2021 at 3:45 p.m. It is requested, therefore, that this fee be waived.” G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Ms. Han submitted a request on January 15th, and the Town provided a fee estimate on January 29th, the 9th business day, I find the Town complied with G. L. c. 66, § 10(e). Please note that January 18th was a holiday and not considered a business day. Where the Town complied with G. L. c. 66, § 10(e), it is necessary to analyze the reasonableness of the fee estimate. The Town stated that its Town Manager and IT staff would require 4 hours and 1.5 hours, respectively, to search for responsive records. However, it is unclear why the Town requires a total of 5.5 hours to search for records responsive to this request. As such, I find the Town must provide additional details regarding the tasks involved in the search process. Modification In its response, the Town suggested “[i]f you wish to narrow the request, either in time frame or in scope, including by providing keywords of topics you are seeking, the Town will be able to provide you with a revised estimate to more efficiently respond to this request, particularly at this time as the Town continues to operate while managing the ongoing COVID- 19 pandemic.” In light of the Town’s response, this office encourages both parties to communicate further to enable the Town to provide the requested records if Ms. Han wishes to modify her request. G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably).

Jason Hoch SPR21/0230 Page 4 February 12, 2021 With regard to Ms. Han’s objections regarding the Town’s Exemption (c) claim, please be advised, that whereas the Town is yet to produce the records, I find the matter cannot be addressed at this time as the contents of these records are unclear. Ms. Han may appeal the substantive nature of the Town’s response within ninety calendar days. See 950 C.M.R. 32.08(1). Conclusion Accordingly, the Town is ordered to provide Ms. Han 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, Rebecca S. Murray Supervisor of Records cc: Sophia Han