Kathleen Grant v. Andover, Town of - Town Clerk (SPR 20220110)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 26, 2022 SPR22/0110 Melissa K. Ripley Town Clerk Town of Andover 36 Bartlet Street Andover, MA 01810 Dear Ms. Ripley: I have received the petition of Kathleen Grant appealing the response of the Town of Andover (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 19, 2021, following a series of correspondence with the Town, Ms. Grant requested “a copy of any communications amongst [a named individual], Safety and Respect at Work, LLC with town government officials including but not limited to the Town Managers, Town Counsel, Select Board Members, Human Resource Director and the Town Clerk.” The Town responded on December 7, 2021, providing a fee estimate. Objecting to the fees, and unsatisfied with the Town’s response, Ms. Grant 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

Melissa K. Ripley SPR22/0110 Page 2 January 26, 2022 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. No Duty to Answer Questions or Conduct Research With her request for records, Ms. Grant included a series of questions concerning line items in the Town’s budget. Please note that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Additionally, 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). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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).

Melissa K. Ripley SPR22/0110 Page 3 January 26, 2022 The Town’s December 7th Fee Estimate In its December 7, 2021 fee estimate, the Town states the following: Based on the nature of this request, [the Town] estimate[s] it would take at least 8 staff hours to obtain and review these records. Using an hourly rate of $25 per hour, and deducting the cost of the first two hours, [the Town] estimate[s] that our work will cost $150.00. Please be advised that the actual cost of producing these records may vary once the Town begins preparing the records. Please forward payment to this office in the amount of $150.00, payable to the Town of Andover. Upon receipt of payment, [the Town] will begin reviewing the records as requested. Based on the Town’s response, it is unclear why it requires 8 hours to fulfill the request. The Town must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, the Town must indicate whether any segregation or redaction is required by law. Further, the Town must state whether the hourly rate being used is equal to or less than that of the lowest paid employee with the necessary skill to perform the tasks. G. L. c. 66, § 10(e) 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. Grant submitted a public records request on November 19, 2021, and the Town provided a response on December 7, 2021, I find it is unclear whether the Town complied with G. L. c. 66, § 10(e). Specifically, the Town must demonstrate whether it provided a response to Ms. Grant’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee assessed is consistent with G. L. c. 66, § 10(d) and 10(e). Conclusion Accordingly, the Town is ordered to provide Ms. Grant 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.

Melissa K. Ripley SPR22/0110 Page 4 January 26, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Kathleen Grant