Eric Richards v. Auburn, Town of - Town Clerk (SPR 20243193)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 5, 2024 SPR24/3193 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 SPR24/3193 Page 2 December 5, 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 Appeals This request was the subject of prior appeals. See SPR24/2952 Determination of the Supervisor of Records (November 8, 2024) and SPR24/3038 Determination of the Supervisor of Records (November 21, 2024). In my November 21st determination, I found that 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). The Town responded on November 25, 2024, providing further details regarding its fee estimate. Unsatisfied with the Town’s response, Mr. Richards petitioned this office and this appeal, SPR24/3193, 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).

Ginger Buteau SPR24/3193 Page 3 December 5, 2024 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). Current Appeal In his appeal petition, Mr. Richards states the following: The Town of Auburn failed to comply with statutory requirements for responding to my public records request within the stipulated timeframe of ten business days… The IT department’s refusal to use cloud storage lacks justification, especially given that other Town departments, such as the Town Clerk’s office, have successfully used services like OneDrive for record disclosure… Cloud services are available, secure, and free, yet the IT department has refused to use them without valid justification. This refusal places an undue burden on the requester, contrary to 950 CMR 32.06, which emphasizes minimizing costs and

Ginger Buteau SPR24/3193 Page 4 December 5, 2024 facilitating access. The claim that using a USB drive is more secure does not align with the actions of other Town and commonwealth of Massachusetts departments in their fulfillment of these types of requests, further undermining this position… The public records law requires that fees be calculated based on the lowest paid employee with the necessary skills to perform the task. The Town has limited this determination to the IT department alone, which is not supported by the law. The records request involved tasks such as searching, compiling, and redacting emails—tasks that do not require specialized IT skills. A lower-paid administrative or clerical employee could have easily completed these tasks, reducing costs for the requester. By assigning the task to an IT specialist, the Town has inflated the cost of compliance unnecessarily. The law requires minimizing costs for the requester, and using a lower-paid employee across the municipality—not limited to the IT department—would have been appropriate… The most recent communication from the Town Clerk’s office states that they forwarded the IT department’s response to the State, yet this response remains incomplete, and numerous records are still outstanding… As previously communicated, due to the severity of the Town’s lack of compliance and violations of law the Town should be encouraged and or directed to provide all records free of charge in its totality. Additionally, if this is not possible at this time by your office, I request that at minimum your office clarify to the Town the requirement to reassess their fees, considering the use the most appropriate, lowest-cost resource available for the tasks performed, rather than a group of highly paid well compensated IT specialists, to ensure compliance with fee calculation requirements the supervisor put forth in his last determination. The City’s Responses In a prior response on October 16, 2024, the Town gave a fee estimate of $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 prior November 7, 2024 fee estimate, the Town 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

Ginger Buteau SPR24/3193 Page 5 December 5, 2024 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. Further, in an email sent to this office on November 7, 2024, the Town stated, “[the Town] has already put in 4 hours of work into this request. [A named individual] makes $33.81 an hour and is the lowest paid person in the [I.T.] department of 2 people.” In its most recent fee estimate on November 25, 2024, the Town broke down its fee estimate as follows: [1.] 1st search through database – 1018 emails results: 60mins [2.] Extracting emails / segregating / reviewing / redacting – 730 emails: 150mins [3.] Compile results – 613 emails: 60mins [4.] Exporting files onto USB in .PST format: 30mins We do not have a public facing cloud drive, USB is preferable due to security and portability of files. Total: 5 hours Additionally, the Town stated, “[w]e are a Municipality of under 20,000 people. The lowest persons wage in the I.T. Department that has the necessary skill to do this records request is above $25/hr[.] Therefore we have decided to charge the $25/hr for this request do to its size and scope. The Total figure of this request would have been $132.99 (USB stick included)[.] To help you with this records request we lowered our fees and decided to only charge $57.99[.]” 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

Ginger Buteau SPR24/3193 Page 6 December 5, 2024 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). In this case, where it appears that the Town will only charge to search through the database and compile results, and will charge for the cost of the USB stick because the Town does not “have a public facing cloud drive[,]” and confirmed that the lowest paid individual with the necessary skill is paid more than $25 per hour, I find the Town has met its burden to establish that it would take this amount of time to prepare the responsive records for production. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). Unclear if additional records exist Based on Mr. Richards’s appeal, it is unclear if the Town possesses additional records responsive to the request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the Town must clarify whether additional records exist. Conclusion Accordingly, the Town is ordered to provide Mr. Richards with a response to the 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