Robert Jones v. Needham, Town of (SPR 20232066)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 13, 2023 SPR23/2066 Theodora K. Eaton Town Clerk Town of Needham 1471 Highland Avenue Needham, MA 02492 Dear Ms. Eaton: I have received the petition of Robert Jones appealing the response of the Town of Needham (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 30, 2023, Mr. Brown requested “…the applications and food permits issued by the Needham health department over the past three months.” Previous Petition and Appeal This request was the subject of a previous fee petition and a subsequent appeal. See SPR23/1641 Determination of the Supervisor of Records (July 24, 2023) and SPR23/1646 Determination of the Supervisor of Records (July 27, 2023). In my July 24th determination, I granted the Town permission to assess a fee limited to $37.57 per hour, and in my July 27th determination, I ordered the Town to clarifyits fee estimate. The Town provided a response on August 10, 2023. Unsatisfied with the response, Mr. Jones petitioned this office and this appeal, SPR23/2066, 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 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 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

Theodora K. Eaton SPR23/2066 Page 2 September 13, 2023 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 hour if such rate is approved by the Supervisor 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Current appeal In his appeal, Mr. Jones contends that the Town has “not explained why it will take a full day to complete a request that is downloading basic information out of an online database.” He further contends that “the town also uses Microsoft so they can share the files without the need of a USB.” The Town’s August 10th response In its August 10, 2023 response, the Town provides further details regarding its fee estimate of $225.42. The Town states that:

Theodora K. Eaton SPR23/2066 Page 3 September 13, 2023 Health Department staff familiar with the database and the applications at issue reviewed the public records request and, based on their experience with the material and responding to similar requests, estimate that it will take 8 to 10 hours of time to search for and compile all the requested records. There are approximately 50 permit applications that are responsive to [the] request. [Named individual] will need to open, download, and transfer each application file to a USB or other device to share them with the requestor. The Town is willing to use the lower hourly estimate (8 hours) in order to show its good faith in this fee estimate. The Town of Needham has more than 20,000 residents. As such, the total estimated fee for searching for the responsive records (in light of the fee petition that was approved on July 24) will be $225.42((8 hours – 2 hours) x $37.57). All of the time noted above is for searching; none of the time is attributable to segregation or redaction. Based on the Town’s response, it remains unclear how the Town requires the number of hours described above to search for and compile the responsive records. The Town must provide further details regarding the tasks involved and what each task entails. Further, it is unclear if the Town intends to charge Mr. Jones for the time spent transferring each application file to a USB. If so, the Town must clarify why the use of a USB is necessary to produce the requested records. 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). 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 a response to Mr. Jones, 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 the response to this office at pre@sec.state.ma.us. Mr. Jones 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: Robert Jones