Paul Healey v. Somerset, Town of (SPR 20233100)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 9, 2024 SPR23/3100 Mark Ullucci Town Administrator Town of Somerset 140 Wood Street Somerset, MA 02726 Dear Mr. Ullucci: I have received the petition of Paul Healey appealing the response of the Town of Somerset (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 27, 2023 and October 25, 2023, Mr. Healey requested the following: [1.] ... emails ... to /from [an identified individual] public and private emails ... [and] ... email to/from [an identified individual] ... emails related to Somerset Town Business for period 24 -27 October 2023. The previous one for the period 01 Sep to 24 [-] Oct 2023. [2.] ... emails to /from [an identified individual] ... [and] ... emails to/from [an identified individual] in Somerset Record System and ... personal email system related to his role in a Somerset Public Body on ZBA and Water Commission and other Public roles he may have had for the period 01 Sep 2023 through 24 October 2023. Previous Appeals and Petition This request was the subject of a previous appeals and a petition from Town. See SPR23/3048 and SPR23/3049 Determination of the Supervisor of Records (December 22, 2023), and SPR23/3087 Determination of the Supervisor of Records (December 28, 2023). In my December 28th determination, I found that permission to charge fees in excess of $25 per hour could not be granted. Concurrent with its petition, on December 20, 2023, the Town also provided Mr. Healey with a fee estimate. Unsatisfied with the Town’s response, Mr. Healey appealed, and this case was opened as a result. 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

Mark Ullucci SPR23/3100 Page 2 January 9, 2024 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 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. Fee Estimates - 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 2 (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). 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

Mark Ullucci SPR23/3100 Page 3 January 9, 2024 days under subsection (b).” Where Mr. Healy submitted his public records requests on October 25 and October 27, 2023, and the Town provided a fee estimate on December 20, 2023, I find the Town has not met its burden to demonstrate that its December 20th fee estimate 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). Subsequent to the opening of this appeal, in an email to the Town and this office on December 29, 2023, Mr. Healey indicates that he is willing to modify the scope of his request, and provides a modified date range. This office encourages Mr. Healey and the Town to continue to communicate directly in order to facilitate providing records more efficiently and affordably. To the extent possible, the Town must provide responsive records on a rolling basis. Conclusion Accordingly, the Town is ordered to provide Mr. Healey 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: Paul Healey