Tina Brown v. Westwood, Town of - Clerk's Office (SPR 20251439)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 5, 2025 SPR25/1439 Molly Fitzpatrick Deputy Town Administrator Town of Westwood 580 High Street Westwood, MA 02090 Dear Ms. Fitzpatrick: I have received the petition of Tina Brown appealing the response of the Town of Westwood (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 28, 2025, Ms. Brown requested, “the following records in electronic format (e.g., PDF) if available: Architectural plans, blueprints, or specifications for Fire Station 2, specifically detailing its training facilities, including training rooms and stairwells.” The Town responded on May 12, 2025, providing a fee estimate. Objecting to the fees, Ms. Brown petitioned this office and this appeal, SPR25/1439, was opened as a result. While this appeal was pending, the Town provided a supplemental response on May 23, 2025. 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. Att’y 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. 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

Molly Fitzpatrick SPR25/1439 Page 2 June 5, 2025 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. 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 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Current appeal In her appeal, Ms. Brown claims that the “[t]he Town’s . . . $2,000 fee . . . is excessive” and contends, “I requested records in electronic format. . . .The Town describes retrieving and scanning physical files but does not confirm whether electronic versions exist[.]” Regarding the portion of her appeal requesting that the Supervisor, “[d]irect the Town to provide the requested records free of charge[.]” Ms. Brown is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order that a record custodian do so. The Town’s May 12th Fee Estimate and May 23rd Response In its May 12, 2025 fee estimate, the Town provided a total fee estimate of $2,000. The Town indicated that because its “population is 16,266[,]” the first two hours of employee time to search for, compile, segregate, redact or reproduce the records are factored into its fee estimate. See G. L. c. 66, § 10(d)(iii). The Town further stated that it would charge a rate of $25 per hour, which is less than the hourly rate of the lowest paid employee with the necessary skills to perform the required tasks, and provided the following chart concerning the fee and estimated time involved:

Molly Fitzpatrick SPR25/1439 Page 3 June 5, 2025 Estimated Personnel Cost: Department Estimated Hours Hourly Rate Estimated Personnel Cost Building/HR 80.00 $25.00 $2000.00 Total Estimated Personnel Cost $2000.00 The Town additionally advised the following: Hours of Search Time-Minium [sic] of 40 hrs The total number of pages relating to those documents is several thousand, including many large scale plans. The effort to retrieve all of these from archive and produce copies (either digital or paper) would require dozens of person-hours. This would involve getting the files out of archive, pulling apart staples/binding/ etc., scanning single and multi-page document packages, and scanning the large format sheets one at a time and re-file. In this case, the Town estimates that it will take approximately 1 minute per page to determine whether it is responsive. . . . Hours required to segregate/redact):Minium [sic] of 40 hrs Segregation time includes the time used to review records to determine what portions are subject to redaction or withholding under G. L. c. 4, § 7(26) or other legally applicable privileges. Redaction time includes the time to delete, or otherwise remove that part of a public record that is exempt from disclosure under G. L. c. 4, § 7(26) or other legally applicable privileges from non-exempt material. The Town estimates it will take approximately 1 minute per page to complete its segregation, and potential redaction of the records sought in your request[.] In its supplemental response to Ms. Brown and this office on May 23, 2025, the Town further explains the following: The documents requested reside in the Building Department and are in paper format. The fee assessed covers the cost to search, pulling apart staples/bindings, scanning, and time to refile. The Town also explains that “Ms. Brown is free to make an appointment with the Building Department . . . to review the records herself at no cost.” Upon review, I find that although the Town has explained the process of searching for, reproducing, and compiling the records, it is uncertain why it would take 40 hours to segregate or redact the responsive records. In particular, where the Town “estimates it will take approximately 1 minute per page” to segregate or redact the responsive records, it is unclear how many how many pages of records the Town possesses that it intends to segregate or redact. 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).

Molly Fitzpatrick SPR25/1439 Page 4 June 5, 2025 Moreover, it is unclear if the redactions are required by law. As such, I find the Town must clarify 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). Based on the foregoing, I find the Town must revise its fee estimate or provide further explanation of how the fee assessed in its May 12, 2025 estimate is consistent with G. L. c. 66, § 10(d). Where the Town stated in its May 30, 2025 supplemental response that Ms. Brown may, “make an appointment with the Building Department . . . to review the records herself at no cost[,]” I additionally encourage the parties to continue to communicate directly to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). Conclusion Accordingly, the Town is ordered to provide Ms. Brown 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. Sincerely, Manza Arthur Supervisor of Records cc: Tina Brown