Julie Nardone v. Ashland, Town of - Office of the Town Clerk (SPR 20221645)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 1, 2022 SPR22/1645 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. Previous Appeal This request was the subject of a previous appeal. See SPR22/1060 Determination of the Supervisor of Records (May 20, 2022). In my May 20th determination, I ordered the Town to revise its fee estimate or provide further explanation of how the fees are consistent with the Public Records Law. Subsequently, the Town responded on June 6, 2022, providing an updated fee estimate. 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 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 SPR22/1645 Page 2 August 1, 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). The Town’s June 6th Response In its June 6, 2022 response, the Town provides the following information: As to providing further detail of what is involved in searching for and compiling the responsive records, the Town’s IT Director . . . is the only Town employee capable of doing so and he describes the process as follows: A. searching for the emails [Ms. Nardone] requested; B. Exporting the emails to an “MBOX file” which is an email mailbox saved in a mail storage format that lists an entire inbox’s messages in a single text file; C. Using a separate program to convert the MBOX file into PDF format, as the MBOX file cannot be read without said program; D. Monitoring the program while it converts the MBOX file into a PDF, as the program tends to stop before completion, requiring the Director to restart the entire process; and

Cindy Livingstone SPR22/1645 Page 3 August 1, 2022 E. Sorting through the resulting folders of PDFs, as said files invariably include incomplete and/or unsent draft emails, duplicate emails, and junk email - said sorting is performed by the Town Clerk. The foregoing process takes, at minimum, four hours and does not include redaction or segregation. In its previous March 23, 2022 response, the Town indicates that it is charging an hourly rate less than that of the lowest paid employee capable of performing the required tasks. Based on the Town’s response, it is unclear how the Town may charge for steps B, C and D, as described above, under G. L. c. 66, § 10(d)(iii). Specifically, it is uncertain how these steps constitute time to search for, compile, segregate, redact or reproduce records. The Public Records Access Regulations provides the following definition of search time: Search Time. The time needed to locate and identify, pull from the files, copy and reshelve or refile a public record. However, it shall not include the time expended to create the original record. 950 C.M.R. 32.02 With respect to steps B, C and D as described above, it is unclear how processes such as “exporting the emails to an ‘MBOX file’” and “using a separate program to convert the MBOX file into PDF format,” and “monitoring the program while it converts the MBOX file into a PDF” would constitute chargeable “Search Time” under the regulations. Please be advised that the Town cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289- 90 (1979). In her appeal petition, Ms. Nardone indicates that she wishes to “show good faith by reducing the combined records request by two weeks in October 2018.” This office continues to encourage Ms. Nardone and the Town to communicate directly in order 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). Any revision to the request would result in the requirement to issue a revised fee estimate. 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

Cindy Livingstone SPR22/1645 Page 4 August 1, 2022 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, Manza Arthur Supervisor of Records cc: Julie Nardone