Christian Tobin v. Dalton, Town of - Fire District (SPR 20242465)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 11, 2024 SPR24/2465 Melanie Roucoulet Clerk Dalton Fire District 20 Flansburg Avenue Dalton, MA 01226 Dear Ms. Roucoulet: I have received the petition of Christian Tobin appealing the response of the Dalton Fire District (District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 31, 2024, Mr. Tobin requested the following: [1.] All documents utilized by the accountant in determining the fire department’s fiscal year 2024 debt of $183,084.00. [2.] All fire department credit card statements from July 1, 2022, through July 1, 2024. [3.] All fire department expenditure records from July 1, 2022, through July 1, 2024 [4.] All records of fire department overtime expenditures for fiscal year 2023 [5.] All pay stubs issued to [a named individual], a former employee. [6.] All District audio recordings of monthly, executive, or special meetings for the Board of Water Commissioners from July 1, 2022, through July 30, 2024. On August 13, 2024, Mr. Tobin amended his request and additionally sought the following: [7.] All emails sent or received by [a named individual] involving any representative of the District’s accounting firm concerning the fiscal year 2024 debt mentioned in request #1. [8.] All emails sent or received by [a named individual] with any elected official of the District from July 1, 2022, through July 30, 2024. [9.] All records of District Fire Explorers under the age of 18 who responded with or on a fire department ambulance or apparatus, including the incident run reports from July 1, 2022, through July 30, 2024. 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

Melanie Roucoulet SPR24/2465 Page 2 September 11, 2024 [10.] All pay stubs issued to [a named individual] from her hire date through July 30, 2024. [11.] All District credit card statements for the Water Superintendent and Treasurer/Clerk from July 1, 2022, through July 30, 2024. The District responded on August 7, August 23 and August 27, 2024, providing a fee estimate. Unsatisfied with the District’s responses, Mr. Tobin petitioned this office and this appeal, SPR24/2465, 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. 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 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. 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

Melanie Roucoulet SPR24/2465 Page 3 September 11, 2024 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 District’s Responses In its August 7, 2024 response, in response to the July 31 request, the District stated, “[d]ue to the size and complexity of [Mr. Tobin’s] request, the records will not be ready for [Mr. Tobin’s] review until the week of August 26, 2024… the Board charges a per page copy fee of ten cents ($0.10), plus and hourly rate of $18.00 per hour.” In its August 23, 2024 response, in response to the August 13th amended request, the District stated the following: [A]s the Dalton Fire District is considered a municipality with a population under 20,000 all hours of labor, including the first four hours have been included in the cost estimate below. In accordance with Massachusetts Public Records Law, [Mr. Tobin] will be billed $0.05 per copy at $25.00 per hour of labor which includes “segregation” as written. Therefore this time has been included in the estimate below as well. The total amount for this record request will be between $1350.00-$1500.00, we will be able to give you an exact amount once all the records are retrieved. A Money Order or Cashier’s check will need be brought to the Fire Department before records can be released to you. … Unfortunately, the Dalton Fire District is not able to provide [Mr. Tobin] with electronic files. Additionally, the District is unable to fulfill [Mr. Tobin’s] records request for the following items due to the cited reasons: … Audio recordings are not retained once minutes of a meeting have been approved in accordance with: Massachusetts Records Retention Schedule Database, 01.080 Open Meeting Law: Recordings of Meetings for Use in Drafting Minutes[.] In its August 27, 2024 response, the District provided a fee estimate of $1630.45 and broke down the fee estimate as follows: 1359 paper copies x $0.05/copy = $67.95

Melanie Roucoulet SPR24/2465 Page 4 September 11, 2024 62.5 hours of labor x $25.00/hour = $1562.50 Total cost estimate: $1630.45 Additionally, in its August 27, 2024, response, the District stated the following: [M]any of the documents that [Mr. Tobin has] requested contain personal information or are stored along with records that contain such personal or protected health information, and therefore require segregation and/or redaction… the Open Meeting Law… and the Massachusetts Records Retention Schedule require that audio recordings of meetings be retained until the meeting minutes are approved and all administrative use ceases. As the audio records to which [Mr. Tobin] refer[s] are of meetings that have approved and published minutes, the recordings were lawfully deleted in accordance with the Retention Schedule… As previously stated, electronic records are not available at this time for several reasons including but not limited to: The lack of electronic records – many exist in hard copy alone [and] limited access to personnel and software versed in converting and/or formatting electronic records. The District further cited Exemption (f) of the Public Records Law to withhold records regarding “[r]ecent emails between [a named individual] and The Board of Water Commissioners.” Subsequent to the opening of this appeal, on August 30, 2024, a representative of the District stated, “my original cost of $18.00 was for a part time assistant of mine to photo copy over 1,000 bills that Mr. Tobin was looking for. He [then] added 5 more requests of records along with the 6 he had already submitted. Most of the requests I have to print as my assistant does not have access to my accounting software or even know where to find the documents. My rate of pay is almost $40.00 per hour so I changed the rate to $25.00 which I believe is a very fair price.” Current Appeal In his appeal, Mr. Tobin states the following: The District has estimated costs between $1,350 and $1,630.45, including charges for segregation time and an unjustifiable increase in the hourly rate from $18.00 to $25.00… The Dalton Fire District has refused to provide records in an electronic format, citing a lack of access to personnel and software… The District has indicated that audio recordings of meetings were destroyed after the minutes were approved. Given the concerns I have raised regarding the accuracy of these minutes, these recordings should have been retained in compliance with the Massachusetts Records Retention Schedule… I respectfully request that the Supervisor of Records review this case and direct the Dalton Fire District to: [1.] Revise its fee estimate to exclude charges for segregation time and correct the hourly rate to reflect lawful and reasonable costs.

Melanie Roucoulet SPR24/2465 Page 5 September 11, 2024 [2.] Provide the requested records in an electronic format if they are available, in accordance with the legal requirements and common practice. [3.] Retain and produce any audio recordings if they exist, particularly where concerns about the accuracy of meeting minutes have been raised. Additionally, to facilitate a more expedient and cost-effective process, I am narrowing my request to the following documents: [a.] Documents related to the Fire Department Fiscal Year 2023 Debt (as originally requested). [b.] Credit Card Statements for the Fire Department (as originally requested). Modification of the scope of the request Where Mr. Tobin appears to modify the scope of his request in his appeal petition, I find it unnecessary to opine on the District’s fee estimate to his July 31st and August 13th requests. Mr. Tobin is advised to send his modified request to the District’s Records Access Officer. A requestor may petition the Supervisor of Records (Supervisor) only after a written request has been made to the records access officer of the governmental entity that creates or receives the records. 950 C.M.R. 32.01(1). Mr. Tobin may then appeal the substantive nature of the District’s response within ninety calendar days. See 950 C.M.R. 32.08(1). This office encourages Mr. Tobin and the District to continue to communicate to facilitate providing records more efficiently and affordably. Any revision to the request would result in the requirement to issue a revised fee estimate. Any fee estimate by the District must be in compliance with the Public Records Law and its Regulations. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Christian Tobin