O Camo v. Oxford, Town of - Town Clerk (SPR 20231979)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 7, 2023 SPR23/1979 Michelle A. Jenkins Town Clerk Town of Oxford 325 Main Street Oxford, MA 01540 Dear Ms. Jenkins: I have received the petition of an anonymous requester appealing the response of the Town of Oxford (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 6, 2023, the requester sought “…a copy of all responses to public records requests by the town from 2018 to now. This request is only for the letter from the town to the person and not documents.” Previous Petition This request has been the subject of a previous petition from the Town. See SPR23/1660 Determination of the Supervisor of Records (July 25, 2023). In my July 25th determination, I found that in light of the need to collect and segregate the records, as well as the capacity of the Town to produce the records without an extension, the Town had established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The Town was granted an extension of 30 business days. The Town provided a response on August 15, 2023, which included a fee estimate. Unsatisfied with the response, the requester petitioned this office and this appeal, SPR23/1979, 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 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

Michelle A. Jenkins SPR23/1979 Page 2 September 7, 2023 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. Fees -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 how 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 August 15th response In its August 15, 2023 response, the Town provided a fee estimate of $637.90 for 26.5 hours of work at $25.00 an hour to “search, segregate, and redact (where required by law).” The

Michelle A. Jenkins SPR23/1979 Page 3 September 7, 2023 Town stated that: The Town has reviewed your request and anticipates there are records that are responsive to your request. Responsive records that are subject to mandatory disclosure under the Public Records Law will be provided upon payment of any applicable fees (noted below). Where permitted by law, however, such records or material contained therein may be withheld or redacted under any of the exemption to the Public Records Law, other applicable provisions of law, and/or common law privileges, such as attorney-client privilege. See, e.g., G.L. c. 4, §7(26); Suffolk Construction Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-450 (2007); 950 CMR 32.06(3). The Town reserves the right to identify and assert any other applicable exemptions, as it conducts further search and review. In accordance with G.L. c. 66, §10(b)(iv), nothing herein shall limit the Town’s ability to redact or withhold information with state or federal law…. The employee search 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 the first two hours of work associated with this request, as noted above. Upon receipt of your payment in the amount of $637.90, check or money order, made payable to the Town of Oxford, the Town will begin the work necessary to search, segregate, and redact (where required by law) the documents you have requested. As noted, it is anticipated the Town shall produce the requested Town records, subject to withholding or redaction, within 5 business days of receiving payment. The Town also provided the following information: Employee Title of *Hourly Estimated Estimated Total Time Personnel Rate Employee Cost of Estimated Cost Copies Cost 26.5 hours Town Clerk $25.00/hr. $662.50 $11.40 $637.90 Current Appeal In their appeal, the requester states the following: [1] In the town clerk’s response, it does not provide why 26.5 hours would be required to respond to this request.

Michelle A. Jenkins SPR23/1979 Page 4 September 7, 2023 [2] It does not provide the rationale why the town clerk is the lowest paid employee who can respond to this request. [3] Many public records requests such as this one are sent via email. A search of email can be conducted with very little time using keywords. [4] This request only asked for the town’s responses to the public records requests and not the actual documents that were produced under those requests. Therefore, redaction should be very minimal if any at all. [5] Public records responses are a permanent record of the town and should be readily available. [6] In the town’s initial response on July 19th, 2023, the town clerk stated that she had not been the town clerk for the period covered by the request. This was the reason given for needing the extension. However, the town clerk should have knowledge of all public records responses and their location in town since she became town clerk. . . . Although the Town has estimated that the process of producing the responsive documents for production will cost $637.90 and take approximately 26.5 hours, it is unclear why the Town requires this many hours to produce responsive records. It is unclear from the Town’s estimate how many hours are allocated to compile the responsive records, how many hours are allocated to segregate the responsive records, how many hours are allocated to redact the responsive records, and how many hours are allocated to reproduce the responsive records. Further, it is unclear how many pages of responsive records exist and how many minutes per page it will take to segregate and redact the responsive records. Additionally, it is unclear under what statutes the Town is redacting the responsive records. Pursuant to the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). The Town must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. 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). I encourage the parties to communicate in order to facilitate producing records efficiently and affordably. The requester 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) (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 agency or municipality to produce records sought more efficiently and affordably).

Michelle A. Jenkins SPR23/1979 Page 5 September 7, 2023 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 the requester 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. The requester may appeal the substantive nature of the Town’s response within 90 calendar days. See 950 C.M.R. 32.08(1) Sincerely, Manza Arthur Supervisor of Records cc: Anonymous