Mary Dormer v. Carver, Town of - Town Clerk (SPR 20220572)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 17, 2022 SPR22/0572 Cara Dahill Town Clerk Town of Carver 108 Main Street Carver, MA 02330 Dear Ms. Dahill: I have received the petition of Mary Dormer appealing the response of the Town of Carver (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 8, 2022, Ms. Dormer requested: [1] The contract, invoice, or any other documents regarding the public cameras place[d] around Town Hall[;] [2] The video that was taped for the date of January 22, 2020 outside [a named employee’s] office (Permitting), along with any audio that was taped[;] [3] The video and audio of any other interaction with Mary C. Dormer and any employee, contractor, volunteer, or visitor at Carver Town Hall from 2017 to present wherein [a named individual] was asked to leave his office and defuse any fight, screaming, or the like that [the named individual] engaged in[, and;] [4] Any and all videos of Mary C. Dormer (including audio) at any time…with ANY Carver Town Employees. Previous Fee Estimate The Town provided a fee estimate on February 22, 2022. See SPR22/0438 Supervisor of Records Determination (March 3, 2022). There, the Town indicated that it would provide a supplemental response and did so on March 9, 2022. Unsatisfied with the substantive nature of the Town’s response, Ms. Dormer petitioned this office and this appeal, SPR22/0572, was opened as a result. 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

Cara Dahill SPR22/0572 Page 2 March 17, 2022 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 March 9th Response and Fee Estimate In its March 9, 2022 fee estimate, the Town stated: [Regarding Request #1], I have already spent two hours searching for and attempting to locate any responsive records…I am basing the estimate on the amount of time it took me and the hourly rate of the lowe[st] paid employee. Therefore, the estimate to search for and identify responsive records is $36.94 (2 x $18.47). I have been informed by the Accounting Department that it will take [them] approximately 10 minutes to pull and copy each invoice for me to research. There were approximately 20 (or more) invoices from the vendor in the relevant time period. This equates to 3 hours and 20 minutes at the rate of the lowest paid employee in the Accounting office which is $19.31 (x 3 hours)= $57.93. Therefore the estimate for this portion of the work is $76.40… [Regarding Requests #2 and 3, a]fter diligent search, the Town has determined that it has no records responsive to these Requests. [Regarding Request #4, the Town] has determined that surveillance video from cameras posted in and around Town Hall is available…Nonetheless, your request

Cara Dahill SPR22/0572 Page 3 March 17, 2022 is so overly broad and vague that it is impossible for the Town to locate the requested records. The Town Hall has twenty-one (21) surveillance cameras in and around Town Hall, four in the interior and seventeen (17) around the exterior. The cameras are able to record for twenty-four hours per day and seven days per week, but they are only activated when they detect motion. The cameras do not record sound and they do not capture areas near employee offices. It is, therefore, highly unlikely that there is any footage responsive to your request. To determine if any responsive documents exist, however, a Town official familiar with your likeness and having access to camera footage will have to review up to 5,040 hours of video to determine whether you appear in any portions…and whether you are interacting with any Town official in those portions. If there are any responsive records, those records will have to be segregated, copied, and stored on a digital storage device… Please be advised that, if the Town were to proceed with this Request, the estimated cost is $63,000, which is calculated as follows: 4 interior cameras: 24 hrs x 10 days x 4 cameras = 960 hours x $25.00 = $24,000 17 Exterior cameras: 24 hrs x 10 days x 17 cameras = 4,080 hours x $25.00 = $102,000 Total cost: $126,000. Because the cameras only record when there is motion, the Town will discount this cost by 50% to $63,000. Current Appeal In her current appeal, Ms. Dormer stated, “Researching and sending me an incorrect document for the card reader system, is, in my opinion, an amount of time that I should not be charged for…At this juncture, I believe we should allow the State to make a determination.” Requests #1 and 4 Regarding the Town’s fee estimate for Request #1, I find it unclear how the Town figures that each file requires 10 minutes of work. Specifically, it is unclear what tasks must be performed for each file so that it takes 10 minutes to perform. The Town must clarify this. Regarding the Town’s fee estimate for Request #4, I find it unclear how the Town arrived at $63,000. Specifically, where the Town states that the cameras only record for time where someone activates its motion sensors, it is unclear how the Town is charging for a full 24 hours per day for the 10-day period that Ms. Dormer requested footage for. The Town must clarify this.

Cara Dahill SPR22/0572 Page 4 March 17, 2022 Requests #2 and 3 In a telephone call between the Town and a staff attorney in the Public Records Division, the Town confirmed that it has no responsive records for Requests #2 and 3. Under the Public Records Law, the Town is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). 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). Conclusion With respect to Requests #1 and 4, the Town must clarify its fee estimate consistent with this determination. With respect to Requests #2 and 3, where the Town has confirmed that it does not possess records responsive to Ms. Dormer’s request, I find that the Town has met its burden in responding to these portions of Ms. Dormer’s request. The parties are encouraged to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Any fee estimate from the Town must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Accordingly, the Town is ordered to provide Ms. Dormer 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mary Dormer