Holbrook 911 Watchdog v. Holbrook, Town of - Town Clerk (SPR 20221309)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 17, 2022 SPR22/1309 Lauren Mielke Deputy Director of Communications Holbrook Regional Emergency Communications Center 300 South Franklin Street Holbrook, MA 02343 Dear Ms. Mielke: I have received the petition of Holbrook 911 Watchdog (a.k.a. “TBS”) appealing the response of the Holbrook Regional Emergency Communications Center (Center) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 18, 2022, TBS requested approximately fifteen categories of public records. Previous Correspondence This request was the subject of previous correspondence with this office. In response to an email from TBS on June 3, 2022, a staff member of the Public Records Division advised that the Center had until the conclusion of business on June 3, 2022 “to provide a response pursuant to G. L. c. 66, § 10(a).” The Center responded on June 3, 2022, providing a fee estimate. Objecting to the fees, TBS 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

Lauren Mielke SPR22/1309 Page 2 June 17, 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); see also 950 C.M.R. 32.07(2). Once fees are paid, a records ----- 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 the appeal petition, TBS contends that the Center did not respond within the required 10 business days. TBS further contends that “30 hours to research records regarding municipal finances and municipal employees at the scale required by this request does not seem reasonable” and also argues that “the Town of Holbrook does not have the population [to] qualify it to charge for the first two hours of work.” 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).” Further, G. L. c. 66, § 10(b) requires that a fee estimate be provided “not later than 10 business days after the initial receipt of the request for public records.” In this case, TBS submitted the request after business hours at 11:19pm on Wednesday, May 18, 2022. As such, the request was received on Thursday, May 19, 2022. Therefore, Friday, May 20, 2022, was the first business day after receipt of the request. As Monday, May 30, 2022 was a holiday

Lauren Mielke SPR22/1309 Page 3 June 17, 2022 in Massachusetts, the tenth business day after receipt of the request was June 3, 2022. Where the Center provided its fee estimate on Friday, June 3, 2022, I find the Center may assess a fee to produce records. Accordingly, I will proceed to consider the substance of the Center’s June 3rd fee estimate. The Center’s June 3rd Fee Estimate In its June 3, 2022 response, the Center provides the following information: In order to gather and review the requested material for exceptions and redactions, it will require at least thirty (30) hours of the lowest paid employee not to exceed $25.00 per hour in accordance with statute. In order to complete this task, we estimate the cost to appropriately produce these documents to be $750.00. . . . This request cannot be sent electronically due to document size. Based on the Center’s response, it is unclear why the Center requires the amount of time indicated above in order to produce the records. The Center must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to compiling, reproducing, segregating, and redacting the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, as noted above, municipalities may not assess a fee for the first 2 (two) hours of employee time to search for, compile, segregate, redact or reproduce records unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Based on the Center’s response, it unclear whether the Center is charging for the first two hours of employee time. The Center must clarify this. Further, as described 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, the Center must indicate whether the segregation and redaction is required by law. 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 shall be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). Where the Center states in its response that “this request cannot be sent electronically due to document size,” it is unclear if the Center intends to provide records in an electronic format. The Center must clarify this.

Lauren Mielke SPR22/1309 Page 4 June 17, 2022 Conclusion For the reasons discussed above, I find the Center must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Accordingly, the Center is ordered to provide TBS 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Holbrook 911 Watchdog (a.k.a. “TBS”)