Rob Fasulo v. Becket, Town of - Town Clerk's Office (SPR 20210637)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 29, 2021 SPR21/0637 George Roberts Town Clerk Town of Becket Becket Town Hall 557 Main Street Becket, MA 01223 Dear Mr. Roberts: I have received the petition of Rob Fasulo appealing the response of the Town of Becket (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 16, 2021, Mr. Fasulo requested “an electronic copy of the voter attendance for the November 3rd 2020 election.” After not receiving a response, Mr. Fasulo requested the same records again on February 27, 2021. The Town provided a response on March 1, 2021. Unsatisfied with the response, Mr. Fasulo appealed and SPR21/0637 was opened as a result. 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. 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

George Roberts SPR21/0637 Page 2 March 29, 2021 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 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 March 1st response In its March 1, 2021 response, the Town provided a fee estimate stating “[u]pon receipt of [Mr. Fasulo’s] check made out to the Town of Becket in the amount of $14.29 (Fourteen Dollars and Twenty Nine Cents) [the Town] will begin the process of fulfilling your public records request for the voter history for the election requested.” Mr. Fasulo appealed the “fee estimate as they had 10 days to get that to me and they did not.” The Town provided an additional response on March 16, 2021 explaining they “didn’t receive or see Appellant’s “first request.” Sometimes [their] email system doesn’t’ refresh when opening emails, especially when the email is sent over a weekend.” The Town believes they “responded to the request that [they] received in a timely manner. Becket is a Town with a population of less than 2,000, and as such is allowed to charge for the records requested. The estimate provided is reasonable and proper.” 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 Mr. Fasulo submitted a public records request on January 16, 2021, and the Town provided a response on March 1, 2021, I find it is unclear whether the Town complied with G. L. c. 66, § 10(e). Specifically, the Town must demonstrate whether it provided a response to Mr. Fasulo’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request.

George Roberts SPR21/0637 Page 3 March 29, 2021 Conclusion Accordingly, the Town is ordered to provide Mr. Fasulo with a response to the request, 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: Rob Fasulo