Russell Williston v. Lancaster, Town of (SPR 20231156)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 15, 2023 SPR23/1156 Kathleen Rocco Records Access Officer Lancaster Select Board 701 Main Street, Suite 1 Lancaster, MA 01523 Dear Ms. Rocco: I have received the petition of Russell Williston appealing the response of the Town of Lancaster (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 16, 2023, Mr. Williston requested the following records: [1.] Public Records requests received by the town in 2023, by people other than me. [2.] Town responses to public records requests made by people other than me. (Not the records delivered, just the town’s communications back to the requester). On March 23, 2023, Mr. Williston limited his request to “…just the requests received by town hall in 2023.” The Town provided responses on March 29, 2023 and May 31, 2023. Unsatisfied with the responses, Mr. Williston petitioned this office and this appeal, SPR23/1156, 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 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

Kathleen Rocco SPR23/1156 Page 2 June 15, 2023 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. The Town’s March 29th and May 31st responses In its March 29, 2023 response, the Town charged Mr. Williston a fee of $81.25, stating that: The employee search and segregation time quoted above is charged at the hourly rate of the lowest paid person capable of compiling the responsive records, in accordance with 950 CMR 32.07(2)(i). Such hourly rate shall not exceed $25/hour unless otherwise authorized by the Supervisor of Records. Please note that because the Town has less than 20,000 residents, pursuant to the last Decennial U.S. Census, you will be charged for all hours of work associated with this request. The Town’s population as of the last Decennial U.S. Census was 8,055. It is anticipated that the Town will make the documents available electronically and, as such, there will be no copying charges. In its May 31, 2023 response, the Town provided Mr. Williston with records responsive to his request. Current appeal In his appeal, Mr. Williston stated the following: The responsive records I received did not include everything I requested. I requested ‘Town responses to public records requests’ (excepting the records ultimately delivered) and received only the initial receipt sent to each requestor. In many cases there were subsequent responses to the requestors, requesting fees and so forth, and those records were not returned to me. I asked the town about this omission, and received the response attached. I believe my initial request clearly requested all the towns responses to public records requestors -- I did not limit the request to only the initial response. I would like to receive the omitted records. The $81.25 I was charged was for segregation, and have since learned that the town did not obtain authorization from the records division to charge for segregation.

Kathleen Rocco SPR23/1156 Page 3 June 15, 2023 In response, the Town stated the following: Your request asked for the town’s response to PRR during a certain time frame. You specifically said not the records themselves but the Town’s response. This was provided. In many cases, there were subsequent responses including several with fee estimates. If you are [sic] for all the towns’ responses to these records, including supplemental responses, that was certainly not clear from your request email. If, as you highlight below, you are looking only for which requests had fees assessed during that time frame that, too, is a separate request. If you would like to clarify your request, we can provide a supplemental estimate of time, if any, it may take to aggregate that data. A request for records must reasonably describe the records sought. See G. L. c. 66, § 10(a)(i). In Chawla, the Superior court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. 1784CV02087, at 2 (January 23, 2019). The court further indicated “[r]equests for documents that are articulated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘related’ to the category of materials requested, will not satisfy this statutory standard.” Consequently, Mr. Williston may clarify the specific records he is seeking from the Town. This office encourages Mr. Williston and the Town to continue communicating to facilitate providing records more 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 the records sought more efficiently and affordably). The Town’s March 29th Fee Estimate In its March 29, 2023 response, the Department provides a fee estimate for $81.25, which Mr. Williston promptly paid. The Town provided Mr. Williston with responsive records on May 31, 2023. As noted above, 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. See 900 C.M.R. 32.07(2)(n) (custodian may deny access to records for requestor who previously failed to pay fees). In this case, where Mr. Williston has paid the fees, and the Town has already provided Mr. Williston with the records, I find it is unnecessary to opine on the second part of Mr. Williston’s appeal, concerning the Town’s March 29th fee estimate.

Kathleen Rocco SPR23/1156 Page 4 June 15, 2023 Conclusion Accordingly, I will consider this administrative appeal closed. Once the Town has been provided with the needed clarification, the Town must provide a response to Mr. Williston. Sincerely, Manza Arthur Supervisor of Records cc: Russell Williston