Beau Barber v. Nantucket, Town of (SPR 20242772)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 18, 2024 SPR24/2772 Maureen Coleman Town Clerk Town of Nantucket 16 Broad Street Nantucket, MA 02554 Dear Ms. Coleman: I have received the petition of Beau Barber appealing the response of the Town of Nantucket (Town) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On September 2, 2024, Ms. Barber requested the following: [1.] All warrants from FYs 2021-2024. Please include all notes and addendums and be sure they are complete. [2.] FYs 23, 24 Stabilization Fund and Reserve Fund ledgers [3.] Emails between [the fire chiefs] FY 23, FY 24 [4.] Emails between [named individuals] FY 23, FY 24 [5.] All requisitions at Nantucket Fire Department with their approval from who approved them FY 23, FY 24 [6.] Purchase order numbers 240016, 240029, 240029, 240020, 230011, 240020, 240014, 240024, 240033, [7.] Please send a report of Vendor 4294. The Town provided a response on September 17, 2024, including a fee estimate. Unsatisfied with the Town’s response, Ms. Barber petitioned this office and this appeal, SPR24/2772, 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 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

Maureen Coleman SPR24/2772 Page 2 October 18, 2024 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 September 17th Response In its September 17, 2024 response, the Town provided a fee estimate of $575 and broke down its fee estimate as follows: [1.] Police 5 hours at $25.00 125 [2.] Finance 10 hours at $25 250

Maureen Coleman SPR24/2772 Page 3 October 18, 2024 [3.] Fire 4 hours at $25 100 [4.] Admin 4 hours at $25 100 [5.] Total: $575 Although the Town has estimated that it will charge 23 hours to produce responsive records, it is not clear from the Town’s estimate how much of this time is allocated to search, and how much time is allocated for segregation or redaction of the records, if any. The Town must provide additional information regarding the tasks involved in producing these records. 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). Additionally, the Town must clarify if the 23 hours includes the first free 2 hours to search for, compile, segregate, redact or reproduce records. 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). 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 records has been factored into the fee estimate. See G. L. c. 66, § 10(d)(iii). I encourage Ms. Barber and the Town to communicate in order to facilitate producing records efficiently and affordably. Ms. Barber 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 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 a response to Ms. Barber, 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.

Maureen Coleman SPR24/2772 Page 4 October 18, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Beau Barber