Kevin Berner v. Braintree, Town of - Town Clerk (SPR 20231696)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 7, 2023 SPR23/1696 James M. Casey Town Clerk Town of Braintree One JFK Memorial Drive Braintree, MA 02184 Dear Mr. Casey: I have received the petition of Kevin Berner appealing the response of the Town of Braintree (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 20, 2023, Mr. Berner requested email communications from specified email addresses from 09/30/2022 through 07/20/2023. The Town provided a response on July 20, 2023. Unsatisfied with the response, Mr. Berner petitioned this office and this appeal, SPR23/1696, 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

James M. Casey SPR23/1696 Page 2 August 7, 2023 Fee Estimates 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 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). The Town’s July 20th response In its July 20, 2023 response, the Town attached previous fee estimates for prior records requests and stated, “[a]t this time, the first 2 hours of time has been exhausted on requested subject matter, FOIA requests #2023-1195 and #2023-1309, and no further action will until arrangements have been made to send payment for any of the records searches conducted to date. Reference attached file regarding fees for prior searches.” Current appeal In his appeal, Mr. Berner states, “[the Town] cites outstanding payment for two closed FOIA requests as reasons for not providing an estimate for the current FOIA requests.” Based on the Town’s response, it is unclear if the Town possesses any records responsive to the request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). The Town must clarify this matter.

James M. Casey SPR23/1696 Page 3 August 7, 2023 950 C.M.R. 32.07(2)(n) Please note, under the Pulic Records law, Failure to Pay Fee. A records access officer may provide written notice denying access to public records to a requester who has failed to compensate the custodian for previously produced public records, provided: 1. a fee estimate for a previous request was prepared in compliance with 950 CMR 32.00 and the requester agreed to pay the previous fee; 2. the written notice details the reasons for denial, including an itemized list of any balances attributed to previously produced records. 950 C.M.R. 32.07(2)(n). Where Mr. Berner submitted a new records request on July 20, 2023 separate from the two previous records requests cited by the Town in its July 20th response, I find the Town did not provide a fee estimate that meets the requirements under G. L. c. 66, § 10(d) to assess a fee for the requested records. Conclusion Accordingly, the Town is ordered to provide Mr. Berner with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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: Kevin Berner