Christopher Kelleher v. Brookfield, Town of - Town Clerk (SPR 20243134)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 2, 2024 SPR24/3134 Michael P. Seery Town Clerk Town of Brookfield 6 Central Street Brookfield, MA 01506 Dear Mr. Seery: I have received the petition of Christopher Kelleher appealing the response of the Town of Brookfield (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 26, 2024, Mr. Kelleher requested, “a copy of the complete audio recording from the Brookfield Conservation Commission meeting held on October 23, 2024.” The Town provided a response on November 4, 2024. Unsatisfied with the response, Mr. Kelleher petitioned this office and this appeal, SPR24/3134, 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 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 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

Michael P. Seery SPR24/3134 Page 2 December 2, 2024 custodian must provide the responsive records. Fee Estimates – 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 hour 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. Kelleher stated the following: I respectfully request that your office: [1.] Review the Town of Brookfield’s response to my records request and determine if the $27.47 fee violates the two-hour rule. [2.] Instruct the Town to provide the entire open meeting recording, including pre- and post-meeting audio, in digital format without requiring unnecessary materials such as a USB drive. [3.] Assess whether the Town’s reported 81 minutes of staff time for isolating the executive session is reasonable. The Town’s November 4th Response In its November 4, 2024 response, the Town provided a fee estimate of $27.47 and stated, “[i]f [Mr. Kelleher] would like to get the recording from the Conservation Commission please provide [the Town] with a usb flash drive. The fee for this would be $27.47 to the Town of Brookfield as it took all boards clerk… 81 minutes to isolate the executive session portion of the meeting to comply with your request.”

Michael P. Seery SPR24/3134 Page 3 December 2, 2024 Although the Town has estimated that it will charge for 81 minutes 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). Where Mr. Kelleher has stated that he is requesting the files in digital format without requiring a USB, it is unclear whether the responsive record can be provided in the format that Mr. Kelleher has requested to remove the charge for the USB. Additionally, the Town must clarify if the time 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). Under the Public Records Law, 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. G. L. c. 66, § 10(d)(iii). The Town’s fee estimate lacks confirmation of the rate per hour being charged and that the rate per hour is of the lowest paid employee who is capable of performing the task(s). Conclusion Accordingly, the Town is ordered to provide Mr. Kelleher with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Christopher Kelleher