Eric Richards v. Auburn, Town of - Town Clerk (SPR 20243038)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 21, 2024 SPR24/3038 Ginger Buteau Town Clerk Town of Auburn 104 Central Street Auburn, MA 01501 Dear Ms. Buteau: I have received the petition of Eric Richards appealing the response of the Town of Auburn (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 25, 2024, Mr. Richards requested “records pertaining to [named individuals], businesses, and addresses for the period January 1, 2018, to the present.” On October 24, 2024, Mr. Richards modified his request to the following: [1.] PDF Business Certificate file for ALL HVAC LLC [2.] Any disclosable public records related to [named individuals] [3.] Any disclosable public records related to ALL HVAC LLC, Phoenix Challenge Coins LLC, or any other business entities associated with [a named individual] (including DBAs or sole proprietorships) [4.] Any disclosable public records for addresses… [5.] Any disclosable public records of correspondence (emails, memos, letters, phone calls, meeting notes, Zoom calls, investigations, etc.) involving the listed business entities, individuals, and addresses [6.] Any disclosable public records of evidence collected by the Town of Auburn (photos, videos, audio, statements, etc.) related to the listed businesses, individuals, and addresses [7.] Any disclosable public records of complaints and investigations regarding home occupations under Section 3.9.1.2 of the Zoning Bylaws related to listed businesses, individuals, and addresses [8.] Any disclosable public records of enforcement citations starting 2018 to today under Section 3.9.1.2 of the Zoning Bylaws (including details of violations, outcomes, and parties involved) [9.] Any disclosable public records of revenue generated from enforcing Section 3.9.1.2 of the Zoning Bylaws (permits, appeals, fines) starting 2018 to today 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

Ginger Buteau SPR24/3038 Page 2 November 21, 2024 [10.] Any disclosable public records related to appeals of Section 3.9.1.2 of the Zoning Bylaws starting 2018 (including pending appeals) to today [11.] Any disclosable public records of home occupation permits (or permits of any status) for the listed individuals, businesses, and addresses [12.] Any disclosable public records of criteria used by the Town of Auburn to define what constitutes a home occupation [13.] Any disclosable public records of legal citations used to define home occupations and home occupation businesses [14.] Any disclosable public records of inspections and enforcement actions under Section 3.9.1.2 of Zoning Bylaws (including photos, evidence, and site visit details) regarding the listed individuals, businesses, and addresses [15.] Any disclosable public records of meeting minutes and agendas related to home occupations [16.] All disclosable public records of correspondence related to the enforcement of Section 3.9.1.2 of the Zoning Bylaws [17.] All disclosable public records of policies and procedures related to the enforcement of Section 3.9.1.2 of the Zoning Bylaws [18.] All disclosable public records of directives or guidance from Massachusetts state agencies or government officials regarding zoning enforcement during COVID-19 related to enforcement of Section 3.9.1.2 of Zoning Bylaws [19.] All disclosable public records of public communications related to the enforcement of Section 3.9.1.2 of the Zoning Bylaws Prior Appeal This request was the subject of a prior appeal. See SPR24/2952 Determination of the Supervisor of Records (November 8, 2024). In my November 8th determination, I learned that the Town provided a response to Mr. Richards’ October 24th request on November 7, 2024, and closed the appeal. Unsatisfied with the Town’s response, Mr. Richards petitioned this office and this appeal, SPR24/3038, 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. 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

Ginger Buteau SPR24/3038 Page 3 November 21, 2024 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. Richards states, “[a]s of today, October 29, 2024, I have received only three pieces of the requested public records… The Town Clerk and IT RAO made efforts to disseminate the request to other relevant departments, but those departments ignored the directive. I respectfully ask for assistance in: [1.] Providing all requested records immediately without imposing any fees, given the significant and unreasonable delay and non-compliance. [2.] Ensuring all Town of Auburn departments are coordinated to fulfill the request without further delays…” The City’s Responses In its prior fee estimate on October 11, 2024, the City stated, “[t]he original price of $250 was obtained by using the maximum hourly rate of $25 an hour. 4 previous hours and 6 future hours - 10 hours.”

Ginger Buteau SPR24/3038 Page 4 November 21, 2024 On October 16, 2024, the City reduced the fee estimate to $57.99 and stated, “[w]e have decided to go with $50 plus the cost of the usb stick ($7.99). Files in PST format. The 1.3gb files are [too] large for any of our public facing servers and too large to send by email. I assure you I am trying to work with you, since we are a smaller municipality this request is quite large. Much larger than I’ve received in the past.” In its November 7, 2024 fee estimate, the City reiterated its fee estimate of $57.99 and stated the following: As previously discussed, [the City has] decided to go with $50 plus the cost of the USB stick ($7.99). Files in PST format to reduce costs. The 1.3gb files are too large for any of our public facing servers and too large to send by email. Just to reiterate I already have 4 hours into this request and more to come if you decide to move forward with it. … We don’t use any public facing cloud systems for anything else and creating one isn’t in our interest. A USB is also much more secure that makes sure you receive the files and the[y] are easily transferable and safe. We don’t pay for any cloud services and I’m not sure if the policies on free accounts would even cover us since we aren’t an individual user. I can’t address the other departments. Here in IT, it is a two man team and this will take us maybe another hour of work to complete your request. So $50 for a total of 5 hours in the PST format. Since converting the roughly 700 emails to PDF would take much more time and money. We don’t have any software to do that for us and to purchase would also add to the cost. 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).

Ginger Buteau SPR24/3038 Page 5 November 21, 2024 Although the Town has estimated that it will charge for 5 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. 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). 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). For the reasons discussed above, I find the Town 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 Town is ordered to provide Mr. Richards 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: Eric Richards