Derek Maksy v. Carver, Town of - Town Clerk (SPR 20240392)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 16, 2024 SPR24/0392 Michelle Sheehan Town Clerk Town of Carver 108 Main Street Carver, MA 02330 Dear Ms. Sheehan: I have received the petition of Derek Maksy 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 January 23, 2024, Mr. Maksy requested “all the public records (emails, Texts and Letters) for Property on Meadow Street… located in Carver belonging to [a named individual]. I would like all Communication ie; (emails, texts and letters, etc.) between the Conservation Agent and members of the Conservation Town, Dept of Environmental Protection, or any other Public official relative to the above mentioned property.” The Town responded on February 5, 2024, providing a fee estimate. Objecting to the fees, Mr. Maksy appealed, and this case, SPR24/0392, 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 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. 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 SPR24/0392 Page 2 February 16, 2024 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). Modification of the scope of the request On February 7, 2024, subsequent to the opening of this appeal, Mr. Maksy modified the scope of his request. In response, the Town sent a new fee estimate on February 15, 2024. This office encourages Mr. Maksy and the Town to continue to communicate to facilitate providing records more efficiently and affordably. In light of Mr. Maksy’s modification of the scope of the request and the Town’s subsequent response on February 15, 2024, I find it unnecessary to opine on the Town’s February 5th fee estimate at this time. Mr. Maksy may wish to narrow the scope of his request and resubmit his request to the Town. Any fee estimate by the Town must be in compliance with the Public Records Law and its Access Regulations. If Mr. Maksy remains unsatisfied, he may appeal the Town’s February 15th fee estimate within 90 days of receipt of the response. See 950 C.M.R. 32.08(1).

Michelle Sheehan SPR24/0392 Page 3 February 16, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Derek Maksy