Tracey Stockton v. Marblehead, Town of (SPR 20242407)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 6, 2024 SPR24/2407 Kyle A. Wiley Records Access Officer Town of Marblehead Abbot Hall 188 Washington Street Marblehead, MA 01945 Dear Kyle A. Wiley: I have received the petition of Attorney Tracey M. A. Stockton appealing the response of the Town of Marblehead (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 18, 2024, Attorney Stockton requested 27 categories of records including, among other things, “documents and telephone records” for numerous individuals and specified addresses over calendar years ranging from 2013 to 2023. Previous Appeal and Petition This request was the subject of a previous appeal and a petition from the Town. See SPR24/0979 Determinations of the Supervisor of Records (April 5, 2024 and April 25, 2024) and SPR24/2091 Determination of the Supervisor of Records (August 5, 2024). In my August 5th determination, I found that the Town must revise its fee estimate or provide further explanation of how the fees assessed are consistent with the Public Records Law. Subsequently, the Town responded on August 15, 2024. Unsatisfied with the Town’s response, Attorney Stockton petitioned this office, and this appeal, SPR24/2407, was opened as a result. In a letter to this office and Attorney Stockton on September 6, 2024, the Town reiterates the information provided in its fee estimate. 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, 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

Kyle A. Wiley SPR24/2407 Page 2 September 6, 2024 § 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. 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). The Town’s August 15th Fee Estimate In its August 15, 2024 response, the Town provides the following information regarding its fee estimate: The initial estimate to search for responsive records indicated that the time expended would amount to $750.00, the first two hours of which would not be counted based on Marblehead’s population count in the last decennial census, leaving an estimate of $700.00. This money has not been paid, and reflects the credit for the first two hours of employee time in searching for and compiling responsive records.

Kyle A. Wiley SPR24/2407 Page 3 September 6, 2024 [T]he Town’s preliminary search located 778 individual billing invoice records for the employees you listed in your records request, and that no other records relating to your request for “telephone records” existed. Based on experience from responding to previous records requests, producing these invoices will require approximately twelve and one-half (12.5) minutes per invoice, or twenty-five (25) minutes for every two invoices. With 778 total invoices, this comes to 9,725 minutes, or 162.08 hours. The time for each individual document includes locating the invoice, separating it from any other documents it is attached to, and copying the invoice for production to you. The lowest rate for employee time to carry out and respond to this request is the maximum $25.00 per hour that may be charged under the public records law. Multiplying $25.00 per hour by the 162.08 hours of employee time that will be necessary to spend complying with your request comes to $4,052.00. Is limited solely to the time associated with compiling and producing the record as described above. There is no review, redaction, or segregation associated with these records, and the Town is not seeking to charge fees in excess of $25.00 per hour with respect to these specific documents. This fee is in addition to the initial estimate provided on March 29, 2024, as this fee relates solely to the actual costs of compiling and producing records. In its previous March 29, 2024 response, the Town provided the following information: With respect to the 27 separate categories of documents sought, the Town estimates in good faith that identifying and segregating responsive records for production will take a minimum of 25 hours of time, at a total cost of $750.00. Discounting the first two hours of the time to search for responsive records, this comes to $700.00. This is provided as a preliminary estimate for the minimum amount of time that the Town will spend in determining what records exist, and may be updated once the Town begins preparing the responsive records. Please note that the Town previously received approval to charge for segregation and redaction, and to assess fees limited to $75.00 per hour for attorney review. See SPR24/0979 Determinations of the Supervisor of Records (April 5, 2024 and April 25, 2024). Although the Town has confirmed that it will charge less than the hourly rate of the lowest paid employee with the necessary skills, and has confirmed it will not charge for segregation and redaction, based on the Town’s August 15th fee estimate, it is unclear why the Town requires 25 hours to search for the records. It is additionally uncertain why the Town requires 12.5 minutes per invoice to produce and copy the records. The Town must provide further details regarding the contents of the records, the tasks involved, and why these amounts of time would be required. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). For the reasons discussed above, I find the Town must revise its fee estimate or provide

Kyle A. Wiley SPR24/2407 Page 4 September 6, 2024 further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Town is ordered to provide Attorney Stockton with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Tracey M. A. Stockton, Esq. Matthew D. Provencher, Esq.