Mary Dormer v. Carver, Town of - Town Clerk (SPR 20240303)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 14, 2024 SPR24/0303 Michelle Sheehan Town Clerk Town of Carver 108 Main Street Carver, MA 02330 Dear Ms. Sheehan: I have received the petition of Mary Dormer appealing the response of the Town of Carver (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 7, 2023, Ms. Dormer requested “all correspondence between SLT (which includes the owner and any employee or representative of the Company), RBBP, ERC and the Finance Committee in the last year.” Previous Appeal This request was the subject of a previous appeal. See SPR24/0127 Determination of the Supervisor of Records (January 25, 2024). In my January 25th determination, I ordered the Town to provide Ms. Dormer with a response to her request. Subsequently, the Town responded on January 29, 2024, providing a fee estimate. Objecting to the fees, Ms. Dormer appealed, and this case 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 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 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

Michelle Sheehan SPR24/0303 Page 2 February 14, 2024 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); -se-e -a-ls-o 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 $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Town’s January 29th Fee Estimate In its January 29, 2024 response, the Town provides a total fee estimate of “$ 425.00 - $574.00.” In support of its request, the Town provides the following information: That amount is based on estimated employee search and segregation time of 18- 24 hours, times an hourly rate of $25.00 per hour. The employee search and segregation time quoted above is charged at the hourly rate of the lowest paid person capable of searching for the responsive records. . . . Since the requested records are not available in electronic format due to the file being extremely large and the records are susceptible to ordinary means of reproduction the Town has assessed copy costs of $0.05 per page. The pages of the requested records totals of a low estimate of 500-800 pages. As a result, the total copy costs are $25-$4[sic] . . .

Michelle Sheehan SPR24/0303 Page 3 February 14, 2024 The search and segregation costs have been calculated using the hourly rate of $25. In order to comply with your request, it will take approximately 6-8 hours of search time. The total number of hours charged will be an estimated 6-8 hrs. X $25 per hour = $150 - $200 for searching. . . . The segregation costs have been calculated using the hourly rate of $20.85. In order to comply with your request, it will take approximately 12-16 hours of segregation time. The total number of hours charged will be an estimated 12-16 hours X $20.85 = $250.20 - $333.60 for redaction. G. L. c. 66, § 10(e) Please be advised that 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).” In this case, Ms. Dormer submitted her request to the Town on December 7, 2023, and the Town provided a fee estimate on January 29, 2024, more than 10 business days following receipt of the request. Consequently, I find that the Town’s January 29th response was not in compliance with G. L. c. 66, § 10(e). Accordingly, the Town may not charge a fee for public records under G. L. c. 66, § 10(e). In its January 29th response, the Town offers multiple suggestions for Ms. Dormer to narrow the scope of her request. This office encourages Ms. Dormer 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 produce the records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Ms. Dormer with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Mary Dormer