Walt Thompson v. Newburyport, City of - Office of the City Clerk (SPR 20242805)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 22, 2024 SPR24/2805 Richard B. Jones City Clerk City of Newburyport 60 Pleasant Street Newburyport, MA 01950 Dear Mr. Jones: I have received the petition of Walt Thompson appealing the response of the City of Newburyport (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 3, 2024, Mr. Thompson requested the following: [1.] the meeting minutes for the organizational city council meeting at the most recent inauguration. [2.] the dates each current city councilor signed that they had read the State’s Open Meeting Law. [3.] the date and location of the public meeting at which [a named individual] was sworn in as a city councilor at large. The City provided a response on October 9, 2024, providing a fee estimate. Unsatisfied with the City’s response, Mr. Thompson petitioned this office and this appeal, SPR24/2805, 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. 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

Richard B. Jones SPR24/2805 Page 2 October 22, 2024 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. 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). Current Appeal In his appeal petition, Mr. Thompson stated, “I am writing to request that your office review the fee request from the City of Newburyport Records Access Officer… It would not take a competent staff member 2 hours to locate and release the above records. Two hours of time is excessive to fulfill such a request… By my estimate, it may take 15 minutes to complete this request.” The City’s October 9th Response In its October 9, 2024 response, the City provided a fee estimate of $50 and broke it down as follows: Title Hours Per Hour Cost Clerk Data 2 Hours 2 hours at $25/hr

Richard B. Jones SPR24/2805 Page 3 October 22, 2024 Departments Involved 2 hours (to search for and $50 1. City Clerk locate hard copy and $25 per hour, as required electronic responsive records and make redactions required by law) TOTAL 2 hours $50 Additionally, the City states, “[t]he employee search time quoted above is charged at the hourly rate of the lowest paid person capable of compiling the responsive records… Please note that because the City of Newburyport has less than 20,000 residents, pursuant to the last Decennial U.S. Census, [Mr. Thompson] will be charged for all hours of work associated with this request.” Although the City has estimated that it will charge for 2 hours to produce responsive records, it is not clear from the City’s estimate how much of this time is allocated to search, and how much time is allocated for segregation or redaction of the records. Additionally, it is unclear how many records there are, or the number of minutes that the City must spend per page for the redactions. The City must provide additional information regarding the tasks involved in producing these records. Accordingly, the City 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, based on the City’s response, I find the City must clarify if the redactions are required by law, and state the applicable statutes, if any. Pursuant to the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). The City must clarify this. For the reasons discussed above, I find the City must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the City is ordered to provide Mr. Thompson with a response to her 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.

Richard B. Jones SPR24/2805 Page 4 October 22, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Walt Thompson