Doc Jones v. Leicester, Town of (SPR 20233094)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 5, 2024 SPR23/3094 David A. Genereux Town Administrator Town of Leicester 3 Washburn Square Leicester, MA 01524 Dear Mr. Genereux: I have received the petition of Doc Jones appealing the response of the Town of Leicester (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 6, 2023, Mr. Jones requested “all emails to and from Selectboard Chair . . . at his [identified non-town email address] relating to [fifty-nine] keyword[d]s from May 1st 2023 until today . . .” Prior Appeals The requested records were the subject of prior appeals. See SPR23/2839 Determination of the Supervisor of Records (November 28, 2023) and SPR23/2881 Determination of the Supervisor of Records (December 13, 2023). In my December 13th determination, I found that the Town had not met its burden in requesting and retaining emails from the identified Selectman that pertain to Town business. The Town responded on December 19, 2023, providing a fee estimate. Unsatisfied with the Town’s December 19th response, Mr. Jones petitioned this office, and this appeal, SPR23/3094, was opened. 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 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 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

David Genereux SPR23/3094 Page 2 January 5, 2024 order to withhold a requested record. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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 Estimates 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 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). The Town’s Responses In the Town’s December 19, 2023 response, the Town provided a fee estimate of $200.00 and stated: The emails and attachments from the School Department needed no edits or removals… If [Mr. Jones] would like any of these emails, they will be produced in paper format and will be subject to redaction. The other information to be provided on the flash drive, which comes from the servers of the Town and the School is free of charge. The information retrieved from [a named individual]’s

David Genereux SPR23/3094 Page 3 January 5, 2024 email is another matter. Staff spent five hours printing applicable documents from the member’s accounts, using an estimated 3,500 sheets of paper. As the lowest paid employee in the department is $29.36 per hour, the $25.00 per hour charge would apply. The cost for producing these paper records is estimated as follows: Labor: $25.00 per hour *5 hours: $125.00 Less: first 4 hours at no cost pursuant to 10 (a)ii: $100.00 Estimated 3,500 pages (7 reams of paper) @ .05 per page: $175.00 Total estimated costs: $200.00 Please note that this estimate does not include the time to be spent reviewing the information, redacting, and counting the final number of pages. The Town sent an additional response on December 26, 2023 which stated: [T]he request made by Mr. Jones, listing a number of individuals as well as keywords, is by far the largest request to date. It required two different servers to be searched, by two different contractors, not including the determination that the Board Chair’s emails were to be provided. The determination that the Board Chair should provide his emails required him and a staff member in my office to work together for five hours pulling information from his email and printing it, using an estimated seven reams of paper. The next part of this process, assuming that the request is followed through to its conclusion, will require that the accumulated printed emails to be examined for potential redaction, which will take more time… If Mr. Jones had a specific set of records on a particular topic or issue, [the request] would have been satisfied in a timely basis. The volume of records slowed the process, and [the Town] erred in not sending a response within the initial ten business day period. Current Appeal In his appeal, Mr. Jones states, “[the Town] didn’t offer an initial response within ten business days as the law requires.” G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Mr. Jones submitted a request on November 6, 2023, and the Town did not provide a response until November 27, 2023, the fourteenth business day, I find the Town has not met its burden to demonstrate that its November 27, 2023 response was in compliance with G. L. c. 66, § 10(b). Accordingly, the Town may not charge a fee for public records under G. L. c. 66, § 10(e).

David Genereux SPR23/3094 Page 4 January 5, 2024 This office encourages Mr. Jones and the Town to continue to communicate 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 produce records sought more efficiently and affordably). To the extent possible, records must be provided on a rolling basis. Conclusion Accordingly, the Town is ordered to provide Mr. Jones with a response to the request, 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Doc Jones