Mary Dormer v. Carver, Town of - Town Clerk (SPR 20242216)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 19, 2024 SPR24/2216 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 July 18, 2024, Ms. Dormer requested the following: [1.] all communications between all members of the ZBA (including alternates) from May 1, 2024 to and including July 17, 2024, including all emails, notes, letters, memos or any other correspondence that is not specifically mentioned here but is understood by a reasonable person of sound mind to be a form of communication; [2.] any and all legal opinions that the ZBA received regarding Read Custom Soils, collateral estoppel, Save the Pine Barrens, [a named individual] and Makepeace; [3.] any and all communication between any member of the ZBA (including alternates) and any employee, outside counsel… in-house counsel… farmers, truck drivers, members of the Cranberry Village Association Board of Directors or any other person with an interest in Read Custom Soils, LLC and Makepeace Corporation including emails, notes, letters, memos or any other correspondence that is not specifically mentioned here but is understood by a reasonable person of sound mind to be a form of communication; and [4.] all police reports regarding any type of assault that has now or in the past since 2014 regarding any employee, board member, executive, trucker or any other person associated with Makepeace who has access to Makepeace bogs and their holdings. The Town responded on August 1, 2024, providing a fee estimate. Unsatisfied with the response, Ms. Dormer appealed and this case, SPR24/2216, 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

Michelle Sheehan SPR24/2216 Page 2 August 19, 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 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. Att’y 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 August 1st Response In its August 1, 2024 response, the Town provided a fee estimate of $241.67 and stated the following:

Michelle Sheehan SPR24/2216 Page 3 August 19, 2024 Where the lowest paid employees capable of doing this work are paid at rates of more than $25.00 per hour, [Ms. Dormer] will be charged at the maximum rate of $25.00 per hour. Please note, that because the Town has less than 20,000 residents, according to the last Decennial U.S. Census, [Ms. Dormer] will be charged for the first two hours of work associated with this request… Town Staff have expended 4 hours to search for, segregate and compile approximately 300 communications/documents that may be responsive to your requests. The estimated cost of this work is $79.17 (4 hours x $22.62). It is estimated that it will take an additional 6.5 hours for Town Counsel to review the documents for responsiveness and exemptions such as attorney-client privilege and exemption (a), and to prepare a privilege log… Where Town Counsel is the lowest paid person capable of reviewing the documents for responsiveness and exemptions such as attorney-client privilege, [Ms. Dormer] shall be charged the maximum rate of $25.00 per hour for a total of $162.50 (6.5 hours x $25.00). Additionally, the Town breaks down its fee estimate as follows: Title Hours Rate per Hour Total ZBA [Zoning Board Several hours to $0.00 $0 Authority] Members search for and locate e-mails ZBA Administrative 4 hours to compile $22.62 $79.17 Assistant and Police documents for review Department by Town Counsel Town Counsel 6.5 hours to review $25.00 $162.50 for responsiveness, redact and prepare a privilege log Total 10.5 N/A $241.67 Although the Town has estimated that the process of segregating or redacting the requested records would require Town Counsel 6.5 hours, it is unclear the number of minutes that the Town must spend per page for review. Accordingly, the Town 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 indicates that it will assess a fee to “prepare a privilege log.” However, it is unclear how the Town may assess a fee for this under G. L. c. 66, § 10(d)(iii). I find the Town must provide additional information explaining how this task, constitutes time to search for, compile, segregate, redact, or reproduce records and how it is chargeable under G. L. c. 66, § 10(d)(iii). I encourage Ms. Dormer and the Town to communicate in order to facilitate producing records efficiently and affordably. Ms. Dormer may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The

Michelle Sheehan SPR24/2216 Page 4 August 19, 2024 Town must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or 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 agency or municipality to produce 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 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: Mary Dormer Shelby Roy Gregg Corbo, Esq.