Patrick Higgins v. Swansea, Town of - Town Administrator (SPR 20220689)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 6, 2022 SPR22/0689 Mallory Aronstein Town Administrator Town of Swansea 81 Main Street Swansea, MA 02777 Dear Ms. Aronstein: I have received the petition of Patrick Higgins appealing the response of the Town of Swansea (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 19, 2022, Mr. Higgins requested, “emails and texts sent or received on a town-issued device or any other correspondence from [a list of certain individuals] from Dec. 1, 2021 to Mar. 20, 2022.” Previous Petition This request was the subject of a petition and request for reconsideration from the Town. See SPR22/0694 Supervisor of Records Determination (March 28, 2022); SPR22/0694 Supervisor of Records Determination (April 6, 2022). In my March 28th determination, I found that the Town had established good cause for a time extension of 30 business days, and that the Town may assess a fee limited to $71.84 per hour. In my April 6th determination, I found that the Town is permitted to charge for time spent segregating and redacting the requested records. Concurrent with its March 23, 2022 petition to this office, the Town also provided a written response to Mr. Higgins, including a fee estimate. Objecting to the fees, Mr. Higgins 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 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

Mallory Aronstein SPR22/0689 Page 2 April 6, 2022 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. 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 Estimates - 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 2 (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). The Town’s March 23rd Fee Estimate In its March 23, 2022 fee estimate, the Town provides the following information: [The Town’s] good-faith estimate of the cost of producing any records that are responsive to your request is as follows: $71.84 per hour at 6 estimated search hours (which total hours are exclusive of the first 2 hours, for which there is no charge by law), for a total of $431.04.

Mallory Aronstein SPR22/0689 Page 3 April 6, 2022 $71.84 at 22 estimated segregation hours and 3 estimated redaction hours, for a total of $1,796.00 A minimum of 20,000 pages at $0.05 per page, for a total of $1000. Please note that, while there is no charge for electronic copies, any records that must be redacted, by necessity will require that a hard copy be created and then scanned in, prior to emailing you the redacted version of the document. Concurrently, any text messages would need to be printed out prior to being scanned in. Total initial estimate: $3,227.04 Based on the Town’s response, it is unclear why the Town requires 6 hours of search time. The Town must provide further details regarding the tasks involved and what each task entails. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Preferred Format A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). Additionally, a records access officer may not assess a copying fee for electronic copies of records. See 950 C.M.R. 32.07(2)(f). Accordingly, the Town may not charge for “hard copies” described above. For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Town is ordered to provide Mr. Higgins 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 this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Patrick Higgins