Kevin Stetson v. Ashby, Town of - Office of the Town Clerk (SPR 20222415)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 7, 2022 SPR22/2415 Angela Jack Records Access Officer Town of Ashby Office of the Town Clerk 893 Main Street Ashby, MA 01431 Dear Ms. Jack: I have received the petition of Kevin Stetson appealing the response of the Town of Ashby (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 2, 2022, Mr. Stetson requested documents related the ARPA Project Summary regarding construction projects in the Town and specifically requested “…proof of the status of each line [and] the actual cost, date of payment, and recipient of payment.” Previous Appeal This request was the subject of a previous appeal. See SPR22/2380 Determination of the Supervisor of Records (October 24, 2022). In my October 24th determination, I closed the administrative appeal because the Town provided a response dated October 21, 2022. Unsatisfied with the Town’s response, Mr. Stetson petitioned this office and this appeal, SPR22/2415, 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. 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

Angela Jack SPR22/2415 Page 2 November 7, 2022 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 custodian must provide the responsive records. Fee estimate – 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 (two) 2 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 October 21st Response In its October 21, 2022 response, the Town asserts: Please be advised that the lowest paid employee able to compile the documents would be my assistant [an identified individual]. Her hourly rate of pay is $25.00. My preliminary estimate is that it will take her approximately 3.5 hours to search through the vendor warrants, the invoice files, and the files in the Inspectional Services Department. Please remit a check made payable to the Town of Ashby in the amount of $87.50.

Angela Jack SPR22/2415 Page 3 November 7, 2022 Current Appeal In his appeal, Mr. Stetson asserts: I feel the amount of $25.00 an hour for the Assistant Town Administrator searching for documents is Extortion! I also believe the Town Accountant would be the individual who would have more access to the Town’s Finances and Budget, considering it is her job. Furthermore, I do not feel I should have to pay for these Public Documents, in a Town such as ours, A population of 3000. Also, as a former Member of the Finance Committee for almost 15 years, (2006- 2021) it was not uncommon that if a resident requested Financial documents of the Town they were given to them. Although the Town has estimated that the process of searching and compiling the responsive documents for production will take 3.5 hours of employee time, it is unclear how the Town requires this many hours to search for and compile the responsive records. It is also not clear how long it will take the Town to individually search the vendor warrants, the invoices files, and the files in the Inspectional Services Department. Further, the Town must provide additional information regarding its population. Municipalities may not assess a fee for the first two (2) 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). Population data shall be determined by the decennial U.S. Census, and it shall be the burden of the RAO to provide population data information when responding to a request. 950 C.M.R. 32.07(2)(m)(2)(ii). As such, the Town must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). This office encourages the requestor and the Town to communicate in order to facilitate producing records efficiently and affordably. The requestor 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). The Town must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). The requestor may wish to narrow the scope of the request. Conclusion Accordingly, the Town is ordered to provide the requestor with a response to the request, 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

Angela Jack SPR22/2415 Page 4 November 7, 2022 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: Kevin Stetson