Walt Thompson v. Newburyport, City of - Office of the City Clerk (SPR 20242960)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 14, 2024 SPR24/2960 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. Prior Appeal This request was the subject of a prior appeal. See SPR24/2805 Determination of the Supervisor of Records (October 22, 2024). In my October 22nd determination, I found that the City must provide further details regarding its fee estimate, including how much of the estimated timed is allocated to search, and how much time is allocated for segregation or redaction of the records and if the redactions are required by law. The City provided a response on October 30, 2024, providing further details on the fee estimate. Unsatisfied with the City’s response, Mr. Thompson petitioned this office and this appeal, SPR24/2960, 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

Richard B. Jones SPR24/2960 Page 2 November 14, 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. 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). The City’s Responses In its prior response on October 9, 2024, the City provided a fee estimate of $50 and broke it down as follows:

Richard B. Jones SPR24/2960 Page 3 November 14, 2024 Title Hours Per Hour Cost Clerk Data 2 Hours 2 hours at $25/hr 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.” In its October 30th response, the City stated the following: The City of Newburyport has revised its original invoice to Mr. Thompson from 2 hours of staff time down to 1 hour of staff time. … Item #1 would take approximately 5 minutes of staff time. This would include searching through our online records for the city council meeting minutes from that particular date/time. Item #2 would take approximately 45 minutes. This search would include going through our internal data bases as well as retrieving hard copy records for each of the 11 City Councilors to locate their Open Meeting Law information and signatures. Item #3 would take approximately 10 minutes of staff time. This search would include going through online recordings of meetings as well as going through our City of Newburyport signature oath book that dates back to 1968 that has an average of 40 signatures per page. In total, these three requests made by Mr. Thompson would add up to 60 minutes of staff time total. Current Appeal In his appeal petition, Mr. Thompson stated, “[a]sking if you’d contact Newburyport City Clerk to waive costs for my requested information. None were specified in this reply from [the City]. How can I pay Newburyport City Clerk without an invoice?... An invoice is needed to complete their response.” Subsequent to the opening of this appeal, on October 31, 2024, Mr. Thompson sent an

Richard B. Jones SPR24/2960 Page 4 November 14, 2024 email to this office stating, “[t]he city clerk’s office say they need to examine 60 years of pages. The date range is calendar year 2024 and entries are chronological. It would take 1 minute to identify the date. Also, 45 minutes to go through files for certification of receipts? How do they organize it? Throw all of them into a bin? They should be in chronological order. Why don’t they just send me all certifications for 2024 and I will pull out the irrelevant ones. It would take them 5 minutes to do that. Seems like 12 minutes of work which is 0.2 hours, which is like $5.” Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). Further, based on Mr. Thompson’s appeal, requesting the City to provide him with “…all certifications for 2024…” for Item 2, and providing a date range “. . . calendar year 2024” for Item 3, it is unclear if the City still requires the same amount of time to search for the responsive records. The City must clarify this matter. Conclusion Accordingly, the City is ordered to provide Mr. Thompson with a response to his 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. Sincerely, Manza Arthur Supervisor of Records cc: Walt Thompson