Holly McNamara v. Somerset, Town of (SPR 20213266)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 28, 2021 SPR21/3266 Michael H. Gallagher Acting Town Administrator Town of Somerset 140 Wood Street Somerset, MA 02726 Dear Mr. Gallagher: I have received the petition of Holly McNamara appealing the response of the Town of Somerset (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 22, 2021, Ms. McNamara requested, “[a]ny correspondence (including all emails, Facebook Messenger messages, and text messages) between any of [named] … people and/or accounts …” The Town responded on November 30, 2021. Unsatisfied with the Town’s response, Ms. McNamara petitioned this office and this appeal, SPR21/3266, 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). 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

Michael H. Gallagher SPR21/3266 Page 2 December 28, 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 November 30th Fee Estimate In its November 30 2021 fee estimate, the Town gave a fee estimate of $350.00 based upon 14 hours at $25.00 per hour to comply with the request. The Town stated, “[t]he average hourly rate of the lowest paid employee performing such work is $25.00.” The Town further asserted, “… it is estimated that it will take 10 hours to locate and review the requested records [and] will take 4 information technology staff hours to locate and review the requested records.” Although the Town estimates that the process of compiling, reviewing, and preparing responsive documents for production will take 14 hours of employee time. It is unclear how the Town requires 14 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). Additionally, it is also unclear what tasks 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).

Michael H. Gallagher SPR21/3266 Page 3 December 28, 2021 Conclusion Accordingly, the Town is ordered to provide Ms. McNamara with a response to the 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 this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Holly McNamara