Michael Weishan v. Southborough, Town of (SPR 20240526)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 4, 2024 SPR24/0526 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 specified 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. Previous Appeal This request was the subject of a previous appeal. See SPR24/0304 Determination of the Supervisor of Records (February 9, 2024). In my February 9th determination, I ordered the Town to revise its fee estimate or provide further explanation of how the fee assessed is consistent with the Public Records Law. Subsequently, the Town responded on February 13, 2024. Unsatisfied 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 SPR24/0526 Page 2 March 4, 2024 with the Town’s response, Mr. Weishan further 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 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. The Town’s February 13th Response In its February 13, 2024 response, the Town provides the following information in support of its fee estimate: The fee estimate provided to the requester was calculated based on the time spent searching, compiling, segregating, and converting 635 emails and attachments. Each email and the associated attachments were reviewed for responsiveness and converted to PDF files in accordance with the request. The Town spent 6 hours completing this process and corresponding with the requester to provide the requested documents. The Town did not charge for the first 2 hours in accordance with the statute. These tasks were performed by the lowest paid employee capable of performing the work, which employee’s salary exceeds the maximum allowed fee of $25.00/hour. Additionally, in a January 30, 2024 email to Mr. Weishan, the Town explains that “the records [Mr. Weishan is] requesting are available as Outlook files. Those can be uploaded and made available to [him] fairly quickly at no charge.” Please be advised that, in accordance with 950 C.M.R. 32.07(1)(d) “the records access officer must provide electronic records in native form when possible.” In this case, the Town has explained the amount of time required, and the tasks involved,

Mark J. Purple SPR24/0526 Page 3 March 4, 2024 and confirmed that the lowest paid employee with the necessary skills is paid more than $25 per hour. Additionally, where the Town has offered to provide the records in their native form, in accordance with 950 C.M.R. 32.07(1)(d), at no cost to the requestor, I find the Town has met its burden to explain how it has provided a reasonable fee estimate for the production of records responsive to Mr. Weishan’s request. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). This office encourages the Town and Mr. Weishan 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 As set forth above, I find the Town has met its burden in responding to Mr. Weishan’s request at this time. Any revision to the request would result in the requirement to issue a revised fee estimate. Accordingly, I will consider this administrative appeal closed. If Mr. Weishan is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Michael Weishan