Shelly Noon v. Norwell, Town of - Office of the Town Clerk (SPR 20231587)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 25, 2023 SPR23/1587 Patricia M. Anderson Town Clerk Town of Norwell 345 Main Street Norwell, MA 02061 Dear Ms. Anderson: I have received the petition of Shelly Noon appealing the response of the Town of Norwell (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 3, 2023, Ms. Noon requested “the town census resident extract database[.]” On July 3, 2023, Ms. Noon stated “[c]larification-Requesting an emailed copy of the ‘town census resident extract’ which sometimes is also referred to as the ‘extract #2’ database.” On July 10, 2023, the Town provided a response, which was a fee estimate of $30. Unsatisfied with the Town’s response, Ms. Noon petitioned this office and this appeal, SPR23/1587, 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). 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 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

Patricia M. Anderson SPR23/1587 Page 2 July 25, 2023 custodian must provide the responsive records. Fee estimate – municipalities 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. 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 July 10th Fee Estimate In its July 10, 2023 response, the Town provides a fee estimate of $30. The Town states: Per MGL C. 51 Sec. 6 dealing with street listings, it states that any person or authorized representative of an organization or committee obtaining such list sign a log maintained by the city or town clerk, placing their names and addresses. You certainly [can] come to the office to accomplish this. A fee of $30.00 is required for non-residents purchasing a residents listing, or forward your payment signed by requestor including their addresses. Based upon the Town’s July 10th response, it is unclear why the Town is assessing a fee of $30.00. 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 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

Patricia M. Anderson SPR23/1587 Page 3 July 25, 2023 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 $30.00, 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). This office encourages Ms. Noon 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). 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). Conclusion Accordingly, the Town is ordered to provide Ms. Noon 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: Shelly Noon