William Christina v. Danvers, Town of - Town Clerk (SPR 20212431)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 5, 2021 SPR21/2431 Diane M. Norris Town Manager Town of Danvers 1 Sylvan Street Danvers, MA 01923 Dear Ms. Norris: I have received the petition of William and Catherine Christina appealing the response of the Town of Danvers (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 17, 2021, William Christina requested 11 categories of records “. . . related to . . . Bridle Spur Road, Danvers, MA, between Town employees, Town Counsel, state employees, private individuals and others.” Previous Petition This request was the subject of a previous petition by the Town. See SPR21/1385 Supervisor of Records Determination (June 9, 2021). In my June 9th determination, I found that the Town had met its burden to assess a fee in excess of $25.00 per hour. Following further correspondence concerning its fee estimate, in a letter to Mr. and Ms. Christina on June 24, 2021, the Town indicated that it would wait to take any further action until the fee estimate was paid. Objecting to the fees and unsatisfied with the Town’s response, Mr. and Ms. Christina appealed, and this case was opened as a result. Status of Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. and Ms. Christina’s status as homeowners will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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

Diane M. Norris SPR21/2431 Page 2 October 5, 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 agency or municipality 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. 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. 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). Current Appeal In their appeal petition, Mr. and Ms. Christina contend that the number of emails the

Diane M. Norris SPR21/2431 Page 3 October 5, 2021 Town claims were produced by the search “is unimaginable.” They further contend that “[t]he Town’s Building Department files are always freely available for public inspection, but [they] were wrongfully denied as homeowners to review it in person in its entirety as every other homeowner is allowed to do.” They also argue that “[t]he Town’s blanket contention of the exemption of attorney-client privilege is not properly claimed and established by the Town.” The Town’s Fee Estimate In the Town’s June 1, 2021 petition, and in subsequent correspondence with Mr. and Ms. Christina, the Town provides the following estimate: “1. The Town estimates that it will take, on average, 1 minute, to search and segregate each of the 1,161 emails, identified in its initial search for a total of 19 hours and a total cost of (17*$25) $425. The Town estimated that it will take approximately 5 business days to complete this task. The Town estimates that Town Counsel will need to review, at least, the 99 records that may be protect[ed] by the attorney-client privilege and then create the necessary privilege log as required by G.L. c. 66, §10. The Town estimates that process will take an average of 5 minutes per email for a total of 8 hours and a total cost of $600. The Town estimates that it will take approximately 5 business days to complete this task. 2. The Town estimates that it will take approximately 1 minute to search and segregate each of the 556 electronic records that have been identified for a total of 9 hours for a total cost of $225. The Town estimates that it will take approximately 5 business days to complete this task. 3. The Town estimates that it will take approximately 5 hours to search and segregate the 2 boxes or records from the Building Division for a total cost of $125. The Town estimates that it will take approximately 1 business day to complete this task.” Based on the Town’s response, it is unclear why Town Counsel requires 5 minutes per email to review the responsive emails. The Town must provide further details regarding the contents of the emails and why it would take 5 minutes to review each one. Additionally, it is unclear how the Town may assess a fee for a task such as creating a privilege log. Particularly, it is uncertain how such a task constitutes time to search for, compile, segregate, or reproduce records. Please note that the Town may not assess a fee for the time it takes to prepare a response in responding to a public records request. For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fees assessed are expressly provided for and consistent with G. L. c. 66, § 10(d).

Diane M. Norris SPR21/2431 Page 4 October 5, 2021 Knowledge of the Records With regard to the number of emails produced by the search, please note that in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In this case, the Town has used its knowledge of the records to search its email records and determined an estimate for the number of emails responsive to the request. Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k) (emphasis added). With regard to Mr. and Ms. Christina’s objections regarding the Town’s claims of attorney-client privilege, please be advised that where the Town is yet to produce the records, I find this matter cannot be addressed at this time, as the contents of these records are unclear. Once records are provided, Mr. and Ms. Christina 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 Mr. and Ms. Christina with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us.

Diane M. Norris SPR21/2431 Page 5 October 5, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: William and Catherine Christina