Timothy A. Toomey v. Rowley, Town of - Town Clerk (SPR 20222106)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 28, 2022 SPR22/2106 Catherine M. McClenaghan Town Clerk Town of Rowley 139 Main Street, Box 351 Rowley, MA 01969 Dear Ms. McClenaghan: I have received the petition of Timothy Toomey appealing the response of the Town of Rowley (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 25, 2022, Mr. Toomey requested “any and all information of authorized parking lots or parking areas in wetland resource areas approved by the conservation commission or agent and/or contained within NOI or RDAs in the last 10 years.” The Town responded on September 9, 2022, providing a fee estimate. Objecting to the fees, Mr. Toomey 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

Catherine M. McClenaghan SPR22/2106 Page 2 September 28, 2022 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). Current Appeal In his appeal petition, Mr. Toomey contends that “the excessive fee is unjustified.” Additionally, claiming that “this request is in the public interest,” he indicates that he would like the fee waived. The Town’s September 9th and September 15th Responses In its September 9, 2022 response, the Town “estimates that the cost of complying with [Mr. Toomey’s] public records request would be 295 x .33 hour x $25 per hour = $2,458.33.” In support of its fee estimate, the Town provides the following information: The Conservation Commission’s agent has determined that in the last 10 years that public body has received 295 NOI or RDA applications.... [and] each file concerning such applications would have to be pulled and examined to see what, if anything, is said there about parking in wetland resource areas. The Town estimates that it would take at least 20 minutes to review each file. In its September 15, 2022 letter to this office and Mr. Toomey, the Town further elaborates on the files involved in the search:

Catherine M. McClenaghan SPR22/2106 Page 3 September 28, 2022 In this context, an “NOI” means a “Notice of Intent” and an “RDA” means a “Request for Determination of Applicability.” These are applications that property owners file with the Conservation Commission. An RDA determines if a project is subject to the Wetlands Protection Act or the Town’s local wetlands bylaw. After reviewing the application, visiting the site, and conducting a public meeting, the Conservation Commission issues either a “negative” or “positive” Determination of Applicability.... The files generated by NOIs and RDAs vary in size and complexity, but they can contain hundreds of pages, including plans, expert reports, project descriptions, legal memoranda, etc. ... The hard part is figuring out whether, with respect to each of those files, the site contained one or more actual or proposed “parking lots or parking areas in wetland resource areas.” That would require a review of both the text and the plans furnished in connection with each application. In its September 9th estimate, the Town further explains: The hourly rate of the lowest-paid person who could realistically do that work (who is the Conservation Commission’s agent) is $32.69, however, under 950 CMR 32.07(m)(3), the Town is limited to charging $25 per hour. The Town is entitled to charge for every such hour, since its population is less than 20,000; specifically, the population of Rowley was 6,161 according to the latest decennial US census. Where the Town has explained the tasks involved in searching the records, and why it requires the amount of time indicated above, I find the Town has met its burden to explain how it has provided a reasonable fee estimate for the production of records responsive to this request. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). I encourage Mr. Toomey and the Town to communicate in order to facilitate producing records efficiently and affordably. Mr. Toomey may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: 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.

Catherine M. McClenaghan SPR22/2106 Page 4 September 28, 2022 Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). Conclusion As set forth above, I find the Town has met its burden in responding to Mr. Toomey’s request at this time. Any revision to the request would result in the requirement to issue a revised fee estimate. Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Thomas A. Mullen, Esq.