George and Jen Burden v. Lunenburg, Town of (SPR 20231475)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 12, 2023 SPR23/1475 Heather R. Lemieux Town Manager Town of Lunenburg 17 Main Street Lunenburg, MA 01462 Dear Ms. Lemieux: I have received the petition of George Burden appealing the response of the Town of Lunenburg (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 9, 2023, Mr. Burden requested: [A]ny and all invoices, payments, or documents related to products or services purchased by the Town of Lunenburg from [58 identified] companies…. Please also provide any and all names of companies that the Town of Lunenburg purchases their landscaping or related products from. This would include but not limited to products such as fertilizers, seed, herbicides, insecticides, fungicides and other products that enhance plant production, soil and water used in spraying operations or any other types of applications of landscaping products. On June 23, 2023, the Town responded and provided Mr. Burden with a fee estimate. Unsatisfied with the Town’s response, Mr. Burden petitioned this office and this appeal, SPR23/1475, 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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Heather R. Lemieux SPR23/1475 Page 2 July 12, 2023 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. Attorney 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 June 23rd Response In its June 23, 2023 response, the Town provided a fee estimate of $250. The Town asserts: The scope of this request is considerable. Because of the magnitude and difficulty of responding to your request, which will require significant staff time as specified below, and therefore unduly burden the other responsibilities of the Town, I am providing an estimate of time that it will take the lowest paid person to fulfill the search, segregation and production of any available records related to your request….

Heather R. Lemieux SPR23/1475 Page 3 July 12, 2023 [P]lease be advised that the approximate cost of searching for, compiling and reproducing the documents responsive to your request, i.e. all activities for which the Town is permitted to charge fees in accordance with 950 CMR 32.07(2)(m), is ten (10) hours of staff time searching for, compiling and reproducing responsive documents at $25 per hour, totaling $250. If these documents are not in electronic format, an additional charge for copies of black-and-white materials of a size susceptible to ordinary means of production at $0.05 per page… Note that the fee for staff time, above, does not exceed the lowest hourly rate of a person capable of searching for, compiling and reproducing the requested records, per 950 CMR 32.07(2)(i). Copying costs are in accordance with 950 CMR 32.07(2)(e)-(h). Additional fee(s) will apply if you want the documents mailed to you. See 950 CMR 32.07(2)(j). Current Appeal In his appeal, Mr. Burden argues, “[w]e feel the cost to produce documents as outlined in the response is excessive. Also, the documents that are available have not been identified in the response.” Although the Town has estimated that the process of responding to the records request will take ten hours of employee time, it is unclear how many hours each task, such as locating the records, compiling the records, and reproducing the records will take. 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). I encourage the parties to communicate in order to facilitate producing records efficiently and affordably. The requestor may wish to narrow the scope of the request. 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). 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).

Heather R. Lemieux SPR23/1475 Page 4 July 12, 2023 Conclusion Accordingly, the Town is ordered to provide Mr. Burden 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. Sincerely, Manza Arthur Supervisor of Records cc: George Burden