Julie Nardone v. Ashland, Town of - Office of the Town Clerk (SPR 20221060)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 20, 2022 SPR22/1060 Cindy Livingstone Assistant Town Clerk Town of Ashland 101 Main Street Ashland, MA 01721 Dear Ms. Livingstone: I have received the petition of Julie Nardone appealing the response of the Town of Ashland (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 9, 2022, Ms. Nardone submitted two requests for the emails of two Town employees; one request for October 2018, and the other for November 2018. The Town responded on March 23, 2022, seeking to narrow the scope of the request, and providing a fee estimate. Unsatisfied with the Town’s response, and objecting to the fees, Ms. Nardone 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. 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 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

Cindy Livingstone SPR22/1060 Page 2 May 20, 2022 custodian must provide the responsive records. 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 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). Current Appeal In her appeal petition, Ms. Nardone contends, among other things, that “the cost letter . . . doesn’t list what the charges are for and it combines the requests into one.” Please note that, in light of the similarity of the subject matter of the requests, as well as the time period in which the requests were made, Ms. Nardone’s two requests submitted on March 9th may be combined for purposes of providing a fee estimate. A requestor may not divide a request into multiple parts in order to circumvent the fees allowed by the Public Records Law. The Town’s Fee Estimate In its March 23, 2022 response, the Town states that “the cost to provide the requested public records will be as follows: 4 hours @ $25.00 hour staff time = $100.00.” In a letter to this office and Ms. Nardone on May 19, 2022, an attorney for the Town further elaborates that “there are well over 100 emails that will need to be read through for possible redactions for the above- reference public records requests.” He goes on to state that “the Town’s good faith estimate did not and does not include redactions or segregation, but only that the responsive records would have to be ‘read through’ to determine if any redactions or segregation would be necessary.” Further, “he indicates that the only Town employee capable of searching its email database for the responsive records is Town IT Director . . . who is compensated at a rate well in excess of the maximum statutory rate of $25.00 per hour.”

Cindy Livingstone SPR22/1060 Page 3 May 20, 2022 Based on the Town’s response, it is unclear why it requires four hours to respond to 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). Further, please note that under the Public Records Law, a municipality may assess fees to search for, compile, segregate, redact or reproduce records. See 950 CMR 32.07 (2)(i). Where the Towns states “that the responsive records would have to be ‘read through,’” it is unclear if the Town intends to assess a fee for segregation and redaction, or only for searching, compiling and reproducing. The Town must clarify this. Additionally, as noted above, 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). Accordingly, if the Town intends to charge for segregation and redaction, it must explain whether such segregation or redaction is required by law. 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). The Town has also indicated that it is willing to work with Ms. Nardone to determine key words that could be used to narrow the scope of the request. This office encourages Ms. Nardone and the Town to communicate directly 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 municipality to produce the records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Ms. Nardone 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: Julie Nardone