Joseph Pecevich v. Marshfield, Town of - Town Administrator (SPR 20232448)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 30, 2023 SPR23/2448 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, 2023…” Prior Appeal This request was the subject of a previous appeal. See SPR23/2286 Determination of the Supervisor of Records (October 6, 2023). In my October 6th determination, I found that the Town needed to 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). The Town responded on October 13, 2023. Unsatisfied with the response, Mr. Pecevich petitioned this office and this appeal, SPR23/2448, 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. 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 SPR23/2448 Page 2 October 30, 2023 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. 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 October 13th Response In its October 13, 2023 response, the Town provided fee estimates. 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… The Town was directed to confirm whether the redactions were as a result of the attorney-client privilege and so confirms that redactions and segregations were made under this statutory exemption to the public records law.

Michael A. Maresco SPR23/2448 Page 3 October 30, 2023 The Town broke down its fee estimates as follows: [1.] Three (3) hours of employee time was allocated for locating, identifying, and searching ($75.00) [2.] Two (2) nonbillable hours was allocated for Town Counsel to segregate, reproduce, and review [3.] If [Mr. Pecevich] want[s] requested records in physical paper format, there are approximately 650 pages of documents at ($0.05) per copy for ($32.50) to print out. [4.] If [Mr. Pecevich] want[s] the requested information in an electronic PDF format, the total estimated cost would be $100.00. This cost accounts for three hours of employee time allocated for locating, identifying, and searching, as well as one estimated hour of employee time allocated for scanning, formatting, reviewing, and compressing the physical documents to a digital PDF document. Current Appeal In his appeal petition, Mr. Pecevich states, “I find the claim made by the Marshfield Town Administrator that redactions and ‘segregations’ are justified and legal to be questionable…” Although the Town has estimated that the process of searching for the responsive records will take 3 hours of employee time, it is unclear how the Town requires this many hours to search for the responsive records. As such, the Town must provide additional information regarding the tasks involved in the search process. In addition, the Town indicates that it will charge one hour “for scanning, formatting, reviewing, and compressing the physical documents to a digital PDF document.” However, it is unclear how the Town may assess a fee for formatting and compressing under G. L. c. 66, § 10(d)(iii). Particularly, it is uncertain how these tasks constitute time to search for, compile, segregate, redact or reproduce records. Further, where the Town has assessed “[t]wo nonbillable hours to segregate, reproduce, and review” the records, it is not clear how this one hour time, again includes time for “reviewing.” See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The Town must clarify these matters. With regard to Mr. Pecevich’s objections regarding the Town’s claim of the attorney- client privilege, please be advised that where the Town has yet to produce the records, I find that this matter cannot be addressed at this time, as the contents of these records are unclear. Once records are provided, Mr. Pecevich may appeal the substantive nature of the Town’s response within ninety calendar days. See 950 C.M.R. 32.08(1). This office encourages Mr. Pecevich and the Town to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(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 municipality to

Michael A. Maresco SPR23/2448 Page 4 October 30, 2023 produce the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate. For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee assessed in its October 13th estimate is 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 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. Sincerely, Manza Arthur Supervisor of Records cc: Joseph Pecevich