Stanley Mazurczyk v. Chelmsford, Town of - Town Clerk (SPR 20212112)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 2, 2021 SPR21/2112 Patricia E. Dzuris Town Clerk Public Records Compliance Officer Town of Chelmsford 50 Billerica Road Chelmsford, MA 01824 Dear Ms. Dzuris: I have received the petition of Stanley Mazurczyk appealing the response of the Town of Chelmsford (Town) to a request for public records. G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). On March 3, 2021, Mr. Mazurczyk requested records of “two Verizon accounts and devices” along with the “latest unredacted invoices of these Verizon accounts.” Previous appeals This request was the subject of previous appeals. See SPR21/0795 Determination of the Supervisor of Records (April 13, 2021); SPR21/1112 Determination of the Supervisor of Records (May 14, 2021); SPR21/1706 Determination of the Supervisor of Records (July 23, 2021). The Town provided a response to Mr. Mazurczyk on July 27, 2021. Unsatisfied with the Town’s response, Mr. Mazurczyk petitioned this office and this appeal, SPR21/2112, 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). 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

Patricia E. Dzuris SPR21/2112 Page 2 September 2, 2021 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 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 Department’s July 27th Fee Estimate In its July 27, 2021 response, the Department provided redacted records and gave a fee estimate of $2,825.00 to comply with the request. In its response, the Department stated, “[t]he estimate provided to the requestor was based on a total of one hundred and fifteen (115) hours, investigative time estimate of one (1) hour per call which equals an average of 7.5 minutes per task, minus two hours free to perform the following detailed tasks: 1. Investigate the source of each incoming call. 2. Investigate the identity of the recipient of each outgoing call. 3. Determine the nature of each incoming call. 4. Determine the nature of each outgoing call. 5. Match incoming calls to case files. 6. Match outgoing calls to case files. 7. Determine if incoming call is exempt under exemption (a) or exemption (f). 8. Determine if outgoing call is exempt under exemption (a) or exemption (f).”

Patricia E. Dzuris SPR21/2112 Page 3 September 2, 2021 The Town further stated, “… the Town Clerk is the lowest paid employee with the necessary skill to perform the task. One hundred and thirteen (113) hours at $25.00 per hour equals $2825.” Although the Town “. . . estimates that the process of compiling, reviewing, and preparing responsive documents for production . . . will take 113 hours of employee time[,]” it is unclear how the Town requires 113 hours to produce responsive records. Particularly, it is not clear how many hours will be spent reviewing, segregating, redacting and preparing responsive records for production. As such, the Town must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Please note that under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). Based on the Town’s response which stated that “[t]he details of the phone records may fall under exemption (a) as the events perpetrated by family or household members that also relate to Juvenile matters are prohibited and the information retrieved from the family by the police departments in a manner that shall assure their confidentiality,” it is unclear which statute is applicable. The Town must clarify that redaction is required by law in this matter. Further, I am not aware that the Town has submitted a petition under G. L. c. 66, § 10(d)(iv). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. See 950 C.M.R. 32.06(4)(g). Consequently, I find the Town must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. Additionally, it is also not clear how many minutes per page the Town requires to review the responsive records. The Town must clarify these issues. For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Town is ordered to provide Mr. Mazurczyk 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.

Patricia E. Dzuris SPR21/2112 Page 4 September 2, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Stanley Mazurczyk