Stephen Darcy v. Marshfield, Town of - Town Administrator (SPR 20241984)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 25, 2024 SPR24/1984 Michael A. Maresco Town Administrator Town of Marshfield 870 Moraine Street Marshfield, MA 02050 Dear Mr. Maresco: I have received the petition of Stephen Darcy appealing the response of the Town of Marshfield (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 8, 2024, Mr. Darcy requested, “[a]ll emails, text messages and draft presentations submitted, received, and commented on by DPW staff and the Board of Public Works members including but not limited to the EPG study and draft studies regarding the proposed 40b development on Ferry St. in the town of Marshfield from January 1st 2024 to the present.” The Town provided a further response on July 9, 2024, providing a fee estimate. Unsatisfied with the Town’s response, Mr. Darcy petitioned this office and this appeal, SPR24/1984, 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 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

Michael A. Maresco SPR24/1984 Page 2 July 25, 2024 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 July 9th Response In its July 9, 2024 response, the Town provided a fee estimate of $275.00 and broke down the estimate as follows: Estimated Personnel Cost: Department Estimated Hours Hourly Rate Estimated Personnel Cost Public Works 10.00 $25.00 $250.00 Total Estimated $250.00 Personnel Cost Estimated Printing Cost: Department Estimated Copies Rate Per Unit Estimated Printing Cost Public Works 500 $0.05 $25.00 Total Estimated $25.00 Printing Cost Current Appeal In his appeal petition, Mr. Darcy states, “I am looking to appeal the below FOIA fees as excessive… The 10 hour projection is over the top and not realistic and the first two hours are supposed to be free which was not included in the estimate below.” Although the Town has estimated that it will take 10 hours to produce responsive records, it is not clear from the Town’s estimate how much time is allocated to search, and how much time is allocated for segregation and/or redaction of the records. Additionally, it is unclear the number of minutes that the Town must spend per page to segregate or redact the responsive records. The Town must provide additional information regarding the tasks involved in producing these records. Accordingly, the Department must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, the Town’s fee estimate lacks confirmation that the rate per hour is of the lowest paid employee who is capable of performing the task(s) and whether the first two hours of employee time to search for, compile, segregate, redact or reproduce the record or records has been factored into the fee estimate.

Michael A. Maresco SPR24/1984 Page 3 July 25, 2024 Conclusion Accordingly, the Town is ordered to provide Mr. Darcy 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: Stephen Darcy