Dan Albert v. Marblehead, Town of (SPR 20232443)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 26, 2023 SPR23/2443 Kyle A. Wiley Records Access Officer Town of Marblehead 188 Washington Street Marblehead, MA 01945 Dear Mr. Wiley: I have received the petition of Dan Albert appealing the response of the Town of Marblehead (Town) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 10, 2023, Mr. Albert requested “…all monitoring reports conducted by Woodward & Curran related to the rehabilitation and stabilization project done at the ‘Lead Mills’ site.” The Town provided a response on September 15, 2023, which included a fee estimate. Unsatisfied with the response, and objecting to the fees, Mr. Albert petitioned this office and this appeal, SPR23/2443, 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 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

Kyle A. Wiley SPR23/2443 Page 2 October 26, 2023 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 September 15th response In its September 15, 2023 response, the Town provides a fee estimate of $950.00 for 40 hours of work at $25.00 an hour to “segregate and search files.” The Town states the following: Based on a review of your request, due to the magnitude and size of the documents, in order to segregate and search files the estimated cost to provide the requested public records will be as follows:  Approximately 40 hours to pull/compile and review documents related to the request: (2 hours no fee) 8 hours @ $25.00 per hour = $950.00 Based on the Town’s response, it is unclear why the Town requires 40 hours to produce responsive records. The Town must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable).

Kyle A. Wiley SPR23/2443 Page 3 October 26, 2023 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, the Town has not explained if the hourly rate being used is that of the lowest paid employee with the necessary skill to perform the task. The Town must clarify these matters. 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. Albert 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: Dan Albert