Michael Weishan v. Southborough, Town of (SPR 20240304)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 9, 2024 SPR24/0304 Mark J. Purple Town Administrator Town of Southborough 17 Common Street Southborough, MA 01772 Dear Mr. Purple: I have received the petition of Michael Weishan appealing the response of the Town of Southborough (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 12, 2024, Mr. Weishan requested “[r]ecords in any format from, to, or regarding [a named individual], paid Town consultant and Chair of the Open Space Commission, as either chair of the Open Space Commission or paid consultant of the CPC.” Specifically, Mr. Weishan requested: [1.] All emails to any person, including any member of any town board or committee, originating from [named individual’s] town email address, or [specific email address], which she uses in her paid capacity for the Town of Southborough, or any other email addresses associated with her name while in an official or paid Town capacity, from the last four months; [2.] All correspondence between [a named individual], as well as any member of the CPC from any email in their official capacity to [specific email address] or any person at [a specificied website] over the past four months; and [3.] Records of all payments to [a named individual] from the Town of Southborough for the last two years. The Town provided a response on January 31, 2024, which included a fee estimate. Unsatisfied with the Town’s response, and objecting to the fees, Mr. Weishan petitioned this office and this appeal, SPR24/0304, 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 J. Purple SPR24/0304 Page 2 February 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 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. Fees -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 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 January 31st response In its January 31, 2024 response, the Town provides an estimate of $100.00 for 6 hours of work for the purpose of “compiling, segregating and converting the documents responsive to

Mark J. Purple SPR24/0304 Page 3 February 9, 2024 [the] request.” The Town states the following: The Town may charge for any time expended as consistent with the Public Records Improvement Act. See G.L. c. 66, § 10(d); 950 CMR 32.07(2) (record custodian permitted to charge $0.05 per double‐sided page for black and white photocopies, and up to $25.00 per hour for every hour of actual work preparing documents in excess of two hours). Please mail a check payable to the Town of Southborough in the amount of $100.00, representing the Town’s reasonable costs. This cost is associated with the six (6) hours spent compiling, segregating and converting the documents responsive to your request ($25.00 per hour for four (4) hours spent in excess of two hours)... Per your request, and upon receipt of your check, the requested materials will be emailed to you. Please be advised that should you require printed copies of any of the materials, there will be an additional charge for time spent reproducing documents and $0.05 per double‐ sided page for black and white 6 photocopies. Producing separate pdf documents of all attachments to the emails will also be an additional charge. Based on the Town’s response, it is unclear how the Town requires six (6) hours to provide the 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, and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). As discussed above, under the Public Records Law, 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. G. L. c. 66, § 10(d)(iii). However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor under a petition under G. L. c. 66, § 10(d)(iv). Consequently, the Town must explain whether its hourly rate is that of the lowest paid employee with the necessary skill. 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. Weishan 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 this response to this office at pre@sec.state.ma.us.

Mark J. Purple SPR24/0304 Page 4 February 9, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Michael Weishan