Jeff Raymond v. Erving, Town of - Police Department (SPR 20230985)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 24, 2023 SPR23/0985 Bryan Smith Town Administrator Town of Erving 12 East Main Street Erving, MA 01344 Dear Mr. Smith: I have received the petition of Jeff Raymond appealing the response of the Town of Erving (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 26, 2023, Mr. Raymond requested “any responsive documents and/or communications concerning your municipality’s police department and communications in regard to certain public records requests.” Specifically, Mr. Raymond requested: [1] Copies of any responsive communications sent or received between January 1, 2023 through the present day by municipal employees and/or officers and/or employees of the police department to or from [an identified individual] and/or from “MCOPA General Counsel,” broadly construed…. [2] Copies of any responsive communications sent or received between January 1, 2023 through the present day by municipal employees and/or officers and/or employees of the police department to or from legal@masschiefs.org.... [3] Copies of any responsive communications sent or received between January 1, 2023 through the present day by municipal employees and/or officers and/or employees of the police department to or from info@masschiefs.org. On May 10, 2023, the Town responded and provided Mr. Raymond with a fee estimate. Unsatisfied with the Town’s response, Mr. Raymond petitioned this office and this appeal, SPR23/0985, 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 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

Bryan Smith SPR23/0985 Page 2 May 24, 2023 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. 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 May 10th Fee Estimate In its May 10, 2023 fee estimate, the Town estimates a total cost of $50. The Town asserts: An initial search indicates that records responsive to your request (approximately 250 pages) are in the custody of the Town.

Bryan Smith SPR23/0985 Page 3 May 24, 2023 In accordance with 950 CMR 32.07(2)(b), the Town provides the following initial good faith estimate of the cost to comply with your request: Time by the lowest-paid Town employees capable of searching for and compiling responsive records: IT Staff: ½ hour at $25.00 per hour, subtotal $12.50. Chief of Police 1½ hours at $25.00 per hour, subtotal $37.50 Grand total good faith estimate: $50.00. This estimate is based upon hours actually spent by the Town’s Chief of Police and IT staff to search for, identify, and gather potentially responsive records to your request. This estimate include the initial 2 hours of time devoted to complying with your request in accordance with 950 CMR 32.07(2)(m), as Erving’s population was under 20,000 (1,665) in the 2020 U.S. Census. Please note that all of the lowest- paid Town employees capable of searching for and compiling responsive records, referenced above, are paid at rates in excess of $25 per hour, and therefore this estimate is based upon the maximum rate of $25 per hour as required under the Public Records Law. Current Appeal In his appeal, Mr. Raymond argues that it is “improbable that there are ‘approximately 250 pages’ related to the MCOPA request.” Further, Mr. Raymond argues that “[t]he fees for the MCOPA records are inappropriate, overestimate both the length of time needed and cost of compliance, and are unlikely to be based on a good faith approximation of the number of records in question.” Additionally, Mr. Raymond argues that “[t]he fees requested do not meet the Supervisor of Records’ threshold for determining whether fee are appropriate, nor does the municipality or PD provide a rationale to meet said threshold.” In light of the Town’s May 10th response, 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). Conclusion As set forth above, I find the Town has met its burden in responding to Mr. Raymond’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.

Bryan Smith SPR23/0985 Page 4 May 24, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond