Casey G. Fleming v. Oxford, Town of - Town Clerk (SPR 20222681)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 5, 2022 SPR22/2681 Michelle A. Jenkins Town Clerk Town of Oxford 325 Main Street Oxford, MA 01540 Dear Ms. Jenkins: I have received the petition of Casey Fleming appealing the response of the Town of Oxford (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 12, 2022, Mr. Fleming requested “the current list of registered voters in Oxford.” On October 26, 2022, the Town responded. Unsatisfied with the Town’s response, Mr. Fleming petitioned this office and this appeal, SPR22/2681, 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 custodian must provide the responsive 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

Michelle A. Jenkins SPR22/2681 Page 2 December 5, 2022 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 26th Fee Estimate In its October 26, 2022 fee estimate, the Town asserts that it “will make the document(s) available to you within fifteen (15) business days upon the payment of applicable fees, which is $25.00.” Current Appeal In his appeal, Mr. Fleming asserts: [1] The response assesses a $25 fee without explanation. There are no statements of this being a fee for personnel time required to provide the response. It appears to be an ‘entry fee’ which is not allowed. The Town has previously been informed of the requirements regarding fees. See determinations SPR22/3444 and SPR21/3345 as attached. [2] The response was not provided within 10 business days. See determination SPR21/3243 as attached (business day ends at 5:00pm). This request can be fulfilled with a few mouse clicks. The Town should fulfill it without assessing a fee or necessitating subsequent appeals. Based upon the Town’s October 26th response, it is unclear why the Town is assessing a fee of $25.00. The Town must provide further information on the details regarding the tasks involved, including the time it is allocating to compiling, segregating, redacting and reproducing

Michelle A. Jenkins SPR22/2681 Page 3 December 5, 2022 the requested records. For example, it is unclear if the Town is reviewing the documents to redact the records pursuant to certain exemptions. Under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). Additionally, although the Town indicates that it would assess a fee of $25.00, it is unclear whether the Town has used the hourly rate of the lowest paid employee capable of performing the tasks. See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.07(2)(i). The Town must clarify this. Further, 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). Waiver of fees In his petition, Mr. Fleming contends “[t]he Town should fulfill it without assessing a fee[.]” Mr. Fleming is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order that a record custodian do so. This office encourages Mr. Fleming and the Town to communicate in order to facilitate producing records 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 records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Mr. Fleming 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 preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Michelle A. Jenkins SPR22/2681 Page 4 December 5, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Casey Fleming