Michelle Kearney v. Abington, Town of - Office of the Town Clerk (SPR 20213343)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 6, 2022 SPR21/3343 Leanne M. Adams Town Clerk Town of Abington 500 Gliniewicz Way Abington, MA 02351 Dear Ms. Adams: I have received the petition of Michelle Kearney appealing the response of the Town of Abington (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 9, 2021, Ms. Kearney requested, “[a]ny document, report or other public record, dated from September 2019 to the most recent date for which information is available, relating to [identified real property].” Previous Appeal This request was the subject of a previous appeal. See SPR21/3267 Supervisor of Records Determination (December 23, 2021). In my December 23rd determination, I closed SPR21/3267 in light of the Town’s December 15th response. Unsatisfied with the Town’s response, Ms. Kearney appealed, and this case 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 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. Att’y 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 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

Leanne M. Adams SPR21/3343 Page 2 January 6, 2022 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); -se-e -a-ls-o 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). The Town’s November 23rd and December 15th Responses In its November 23, 2021 response, the Town states the following: The Town will provide [Ms. Kearney] with records responsive to this request within fifteen (15) business days from the date of this correspondence. At that time, the Town may also assess [Ms. Kearney] a fee based on a good faith estimate for the number of working hours necessary to complete [her] request. In its December 15, 2021 response, the Town provides the following fee estimate: Based on the Town’s good faith estimate, a $250.00 fee will be required which is based on an estimated time of ten (10) hours at twenty-five dollars ($25.00) an hour to complete your request(s). Please be advised that the actual cost and fee of producing the record(s) may vary upon preparation of such record(s).

Leanne M. Adams SPR21/3343 Page 3 January 6, 2022 G. L. c. 66, § 10(b) and § 10(e) Despite its December 15th response, the Town’s November 23rd response did not meet the requirements under G. L. c. 66, § 10(b) to assess a fee for the requested records. Pursuant to the law, the written response must be made via first class or electronic mail and must, among other things: (vi) identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein; . . . (viii) include an itemized, good faith estimate of any fees that may be charged to produce the records. G. L. c. 66, § 10(b). 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 Ms. Kearney submitted her request on November 9, 2021, and the Town did not provide this response until December 15, 2021, I find the Town did not meet its burden in responding to this request. Conclusion Accordingly, the Town is ordered to provide Ms. Kearny with a response to her 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: Michelle Kearney