George and Jen Burden v. Lunenburg, Town of (SPR 20231723)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 10, 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. Previous Appeal This request was the subject of a previous appeal. See SPR23/1475 Determination of the Supervisor of Records (July 12, 2023). In my July 12th determination, I ordered the Town to provide Mr. Burden with a response to his request. On July 26, 2023, the Town responded. Unsatisfied with the Town’s response, Mr. Burden petitioned this office and this appeal, SPR23/1723, 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

Heather R. Lemieux SPR23/1723 Page 2 August 10, 2023 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. 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 July 26th Response In its July 26, 2023 response, the Town provided a fee estimate of $250. The Town asserts: I estimate that it will take ten (10) hours of staff time searching for, compiling, and reproducing responsive documents at $25 per hour, totaling $250. This will require a search through our accounting software to identify if these vendors were paid by the Town, a search through the paper records that are offsite in our records storage area that are over multiple years and possibly dozens of boxes of

Heather R. Lemieux SPR23/1723 Page 3 August 10, 2023 records manually, and the time for copying these paper records, as they don’t exist electronically. The estimate breakdown of time is as follows: that it will take the person doing the search 3 hours of time to look up the 58 vendors in our accounting software (this will include the initial search of the vendor and identification of any invoices paid to them, the fiscal year that they were paid, the warrant number they were paid on), 4 hours of search time in our offsite storage area manually searching boxes of records, and 3 hours of time to copy any records. According to the decennial U.S. Census, the population of Lunenburg is 11,782 residents and thus can assess a fee for the first two (2) hours of employee time to search for, compile, redact, or reproduce the record or records (G.L. c. 66 section 10d(iii). Current Appeal In his appeal, Mr. Burden argues, “[i]t is not clear to us if the documents exist or not. It does not seem fair for us to have to pay $250 for records that may not exist. [The Town] should have general knowledge if the two main vendors originally provided…are or have been used by [the Town].” Although the Town states that it will take four hours of search time to search the offsite storage area, the Town must clarify approximately how many boxes it will have to search in its offsite storage area. Additionally, the Town must provide an estimate of approximately how many pages it will need to copy. I continue to 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). 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.

Heather R. Lemieux SPR23/1723 Page 4 August 10, 2023 Sincerely, Manza Arthur Supervisor of Records cc: George Burden