Joseph Pecevich v. Marshfield, Town of - Town Administrator (SPR 20232286)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 6, 2023 SPR23/2286 Michael A. Maresco Town Administrator Town of Marshfield 870 Moraine Street Marshfield, MA 02050 Dear Mr. Maresco: I have received the petition of Joseph Pecevich appealing the response of the Town of Marshfield (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 5, 2023, Mr. Pecevich requested, “all communications between the Selectboard members and the Town Administrator, . . . with the Marshfield Town Planner and Planning Department Housing Authority the Quincy Housing Authority, . . . for the period January 1, 2023 through September 5, 20232…” On September 19, 2023, the Town responded and provided Mr. Pecevich with a fee estimate. Unsatisfied with the Town’s response, Mr. Pecevich petitioned this office and this appeal, SPR23/2286, 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 Department 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. 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

Michael A. Maresco SPR23/2286 Page 2 October 6, 2023 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 September 19th Response In its September 19, 2023 response, the Town provided a fee estimate of $75.00. The Town stated the following: [T]his request has necessitated a search of records over an 8 month period… The hourly rate for such fees shall be the hourly rate of the lowest paid employee capable of performing the task, and this person is [the] Administrative Assistant in the Select Board office. Since [the Administrative Assistant]’s hourly rate exceeds twenty-five dollars ($25.00) per hour, the Town will limit the hourly cost to that rate. There shall be no fee for the first two (2) hours of the work performed. The time taken to complete this request was five (5) hours. To the extent there are copies the cost will be $.05 per page. Accordingly, request is made that prior to further effort to release this information that you tender to the Select Board’s Office the sum of $75.00 which said cost is expected to cover the cost of identifying, compiling, segregating and redacting the documents. Let it be noted that within the documents identified and compiled, certain documents have been redacted or withheld under attorney client privilege.

Michael A. Maresco SPR23/2286 Page 3 October 6, 2023 Current Appeal In his appeal, Mr. Pecevich states, “the records I am seeking are related to my job as an elected town official… Also, the TA response mentions ‘redacted’ and ‘withheld’ documents. I need to know if the TA and other involved town officials and counsel are required to provide a listing of the documents that are being withheld or redacted before I pay anything.” Although the Town has estimated that the process of responding to the records request will take 3 hours of employee time, it is not clear from the Town’s estimate how much time is allocated to search, and how much time is allocated for segregation, and redaction of the records. As such, the Town must provide additional information regarding the tasks involved in producing these records. Further, based on the Town’s response, it appears it is assessing a fee only for redactions under the attorney-client privilege. 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). Consequently, the Town must confirm that it is only charging for redactions under attorney-client privilege. 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 Mr. Pecevich 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Joseph Pecevich