Alan J. Dias v. Hanson, Town of - Board of Health (SPR 20221824)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 22, 2022 SPR22/1824 Gilbert Amando Town of Hanson Board of Health 542 Liberty Street Hanson, MA 02341 Dear Mr. Amando: I have received the petition of Alan J. Dias appealing the response of the Town of Hanson Board of Health (Board) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 20, 2022, Mr. Dias requested: “1. Agenda and [M]eeting minutes for the July 12, 2022, Board meeting. Please note, draft minutes are acceptable; and, 2. The ability to inspect and copy if required any and all documents, plans, e-mails, etc. submitted to the Board for their consideration and or viewing at the June 2022 meeting and July 2022 meeting.” In his July 20th request, Mr. Dias indicates, “[p]lease advise as to when the agendas, meeting minutes can be picked up, view[ed] or copied, or you can email them to [an identified email address]. On July 22nd, the Board provided an initial response. In a further response by the Board on July 29, 2022, the Board indicated, “[a]n estimated cost for this request will be charged at $25.00 per hours plus $0.05 x 15 copies = $25.75. This is an estimated cost, if the number of copies exceed 15 or the amount of time to compile records exceed 1 hour. Please note, records may not leave the office of Town Hall.” As a result of the Board’s July 20th and July 29th responses, Mr. Dias petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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 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

Gilbert Amado SPR22/1824 Page 2 August 22, 2022 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Waiver of fees In his petition for appeal, Mr. Dias requested that the fee be waived. Mr. Dias asserted, “…because of the failure to provide [the records] in the required time frame be at no charge to

Gilbert Amado SPR22/1824 Page 3 August 22, 2022 me. Please also note that my request is minimal and should fall under the 2 hour requirements in the statute. Please be advised the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request. Under the Public Records Law, the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. See G. L. c. 66, § 10(d)(v); see also 950 C.M.R. 32.07(2)(k). The Board’s July 29, 2022 Fee Estimate The Board’s July 29th fee estimate advised: “[a] municipal employee who is required to devote more than 2 hours of time to search for, compile, segregate, redact or reproduce a record request may include as part of the fee, an hourly rate. The fee for the Board of Health Office (Board) is $25.00 per hour plus $0.05 cents per page copies. An estimated cost for this records request will be charged at @ $25.00 per hour plus $0.05 x 15 copies = $25.75. This is an estimated cost, if the number of copies exceed 15 or the amount of time to compile records exceed 1 hour, the estimate will be adjusted accordingly. Please note, records may not leave the office or Town Hall.” Based on the Board’s response, it is unclear how much time it spent per task in order to produce the records applicable to Mr. Dias’s request for “…documents, plans, e-mails, etc. submitted [to] the Board for their consideration and or viewing at the June 2022 [Board] meeting and the July 2022 [Board] meeting.” The Board’s estimate did not explain how much time of the (2) hours assessed in its estimate will be allocated to search and compilation. Municipalities may not assess a fee for the first 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). The Board has not explained whether it is allowed to charge for the first two hours of employee time. The Board must clarify these issues. In addition, the Board did not explain whether the $25.00 per hour assessed is 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. Id. The Board must clarify its hourly rate. Lastly, Mr. Dias did not request paper copies of the records, and the Town has assessed a $.05 fee per page for copies. It is Mr. Dias’ intent to scan the records himself at the Board’s or Town Clerks’ Office. While original records may not leave the [Board’s] Office or Town Hall, it my understanding that Mr. Dias seeks to review the records at the Board’s Office or Town Hall,

Gilbert Amado SPR22/1824 Page 4 August 22, 2022 and scan the records himself in either of those offices. The Town is advised, as “[a]n alternative to obtaining copies of records from a records access officer, a requester shall be permitted, to the extent feasible, and at reasonable times: 1. view and inspect records or 2. a personal device such as a camera or portable scanner to copy records. See 950 32.07(b)(1), (2). Therefore, it is unclear why the Board is assessing a fee for copying the records. It is additionally uncertain why the records could not be sent via email to Mr. Dias as indicated in his request. I encourage Mr. Dias and the Town Board to communicate further in order to facilitate producing records efficiently and affordably. G. L. c. 66, § 10(a)(i). The Board must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § 10(a)(vii). Conclusion Accordingly, the Board is ordered to provide Mr. Dias with a revised fee estimate, 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, Manza Arthur Supervisor of Records cc: Alan J. Dias