Alex Belote v. Wayland, Town of (SPR 20211265)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 2, 2021 SPR21/1265 Louise Miller Town Administrator Records Access Officer Town of Wayland 41 Cochituate Road Wayland, MA 01778 Dear Ms. Miller: I have received the petition of Alex Belote appealing the response of the Town of Wayland (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 14, 2021, Mr. Belote requested, “[t]o inspect or obtains copies of [public] records (from November 1, 2020 to March 30, 2021), relating to allegation made against me on December 11, 2020. This includes any mention of myself, Traditions of Wayland, and/or correspondence about this incident (internally or externally during the dates listed above. This shall include all written or electronic records, notes or phone or verbal correspondences(s), text messages, a copy of any call on a recorded line, any emails, and phone records.” Previous appeals The requested records were the subject of previous appeals. See SPR21/1119 Determination of the Supervisor of Records (May 5, 2021); SPR21/1134 Determination of the Supervisor of Records (May 18, 2021). The Department responded on April 29, 2021. Unsatisfied with the Town’s response, Mr. Belote petitioned this office and SPR21/1265 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). 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

Louise Miller SPR21/1265 Page 2 June 2, 2021 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. Fees -Municipalities 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. 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 how 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 April 29th Fee Estimate In its April 29th response, the Town stated a fee estimate of $63.05 as follows: 1.5 hours estimated prep time (file search, copying) x $25/hour = $37.50 • 211 copied pages (of emails and material on file) at .05/ each = $10.55 • Estimated cost of postage for mailing (certified/return receipt) $15.00. In support of the fee estimate, the Town asserted, “… the Town has fewer than 20,000 residents, you will be charged for all hours of work associated with this request, pursuant to 950

Louise Miller SPR21/1265 Page 3 June 2, 2021 CMR 32.07(2)(m). The Town must take into account the hourly rate of the lowest paid person capable of performing this search which is greater than $25.00 for this request.” Based upon the above, it is unclear if the 1.5 hours includes segregation and redaction of records that is not required by law. Further, 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 must detail how much time is needed to search for records and how much time is needed to segregate and/or redact. The Town must also clarify the charge of $15 for the cost of postage for mailing. Current Appeal In his current appeal Mr. Belote claims that the Town did not respond within the ten days and stated, “… [the Town] did not mail it or email it to me on or before the date as required, so I should not have to pay any fees.” For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee assessed in its April 29th estimate is consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Town is ordered to provide Mr. Belote with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as is practicable. 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: Alex Belote