Rich Saltzberg v. Aquinnah, Town of - Office of the Town Administrator (SPR 20210376)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 1, 2021 SPR21/0376 Gabriella Camilleri Town Clerk Town of Aquinnah 955 State Road Aquinnah, MA 02535 Dear Ms. Camilleri: I have received the petition of Rich Saltzberg of The Martha’s Vineyard Times appealing the response of the Town of Aquinnah (Town) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On January 20, 2021, Mr. Saltzberg requested, “... all March and April 2020 emails to or from [an identified person] that concern (in any way) masks, the pandemic, the novel coronavirus, or COVID-19.” On January 25, 2021 Mr. Saltzburg amended his request to include the following records: “… all March and April 2020 emails to or from [an identified person] that concern (in any way) masks, the pandemic, the novel coronavirus, COVID-19, or [an identified person] [and] … all email communications from [an identified person] for the month of May, 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 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

Gabriella Camilleri SPR2/0376 Page 2 March 1, 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 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 February Fee Estimate Responses In its February 8, 2021 response, the Town states, “…a fee of $25/hour will be charged for the Administrators time.” On February 9th, the Town indicated “… the fee for the public records request [is] … about $200.” Current Appeal In his appeal dated February 12th, Mr. Saltzberg states, “… [w]hat's hasn't been made clear are what precisely the fees represent both in labor and in the number of pages.” 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 has not provided sufficient explanation to explain why 8 hours of search time is necessary to comply with the records request and is in conformity with G. L. c. 66, §10(d). Further, The Town's fee estimate lacks confirmation that the rate of $25 per hour is of the lowest paid employee who is capable of performing the task(s). The Town must clarify how much time is needed to search, how much time is needed to segregate under the law and must explain what tasks are necessary to provide the records. Additionally, I find the Town must provide information about whether the responsive records contain information that that is required by law to be segregated or redacted, as well as the applicable statutes, if any. For the reasons discussed above, I find the Town must revise its fee estimate consistent with G. L. c. 66, § 10(d).

Gabriella Camilleri SPR2/0376 Page 3 March 1, 2021 Conclusion Accordingly, the Town is ordered to provide Mr. Saltzberg with a response to the request, provided 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Rich Saltzberg