Eric Richards v. Auburn, Town of - Town Clerk (SPR 20253169)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 12, 2025 SPR25/3169 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 October 6, 2025, Mr. Richards requested “complete accounting trail for sidewalks/pedestrian safety, inception-present.” The Town responded on October 20, 2025, and assigned reference number 2025-781 to this request. Unsatisfied with the Town’s response, Mr. Richards petitioned this office, and this appeal, SPR25/3169, 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. 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 SPR25/3169 Page 2 November 12, 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 2 (two) 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. Richards contends that “the Town’s correspondence and fee estimates do not satisfy this statutory definition of ‘response,’ and consequently he argues the Town may not assess fees for the production of records. He further argues the following: I respectfully request that the Supervisor of Records make formal findings of all identified issues, defects, etc.. in this appeal, including but not limited to: non- compliance, mandatory fee forfeiture, immediate no-cost production of responsive records, and direct written certification of responsive records to be provided by the town the petitioner. 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

Ginger Buteau SPR25/3169 Page 3 November 12, 2025 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). G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under [G. L. c. 66, § 10(b)].” Where Mr. Richards submitted his request on October 6, 2025 and the Town provided its initial response and good faith fee estimate on October 20, 2025, I find the Town complied with G. L. c. 66, § 10(e) by providing a timely response to Mr. Richards’ request. Accordingly, I find this portion of Mr. Richards’ appeal is resolved. Where the Town provided a response within 10 business days, however, it is necessary to review the reasonableness of the Town’s fee estimate. The Town’s October 20th and 22nd Fee Estimate In its October 20, 2025 response, the Town provides a fee estimate, and in its October 22, 2025 response, the Town provides an update to its fee estimate, totaling $96.04. In support of its fee estimate, the Town states the following Per 950 CMR 32.07 Copies of Records; Fees, the following breakdown provides an estimate of the cost to respond to your request. Financial records relating to your request, to be provided by the Accounting Office as noted below. Project codes, general ledger detail, encumbrances and ARPA ledger entries (10): .50 hour Accounts Payable warrants and warrant lists (9): 1.0 hour Purchase orders (9): 1.0 hour Invoices (14): 1.5 Hours Purchase orders, invoices and accounts payable warrants are all filed separately. Purchase orders and invoices are in storage boxes in our office for FY2025. FY 2024 is stored upstairs in the attic. All items will be scanned and submitted in

Ginger Buteau SPR25/3169 Page 4 November 12, 2025 electronic format as requested. Total Hours: 4 hours Rate of lowest paid employee in department that can perform the task: $24.01/hour Total Estimate: $96.04 Reasonableness of the Fee Estimate Although the Town states that it would take 4 hours to produce the responsive records, it is unclear why the Town requires this much time. The Town must advise how much time is needed to search and how much time is needed to segregate and/or redact under the law. Additionally, if redactions are required, the Town must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any, and must clarify how many pages of responsive records it possesses, as well as how many minutes per page the Town requires to segregate or redact the 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). 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). Consequently, the Town must also clarify whether its fee estimate includes time for segregation or redaction not required by law. Additionally, the Town’s fee estimate lacks confirmation of the Town’s population and whether the first two hours of employee time to search for, compile, segregate, redact or reproduce the records has been factored into the fee estimate. Please be advised, municipalities may not assess a fee for the first two 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. See G. L. c. 66, § 10(d)(iii). For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee estimate of $96.04 is consistent with G. L. c. 66, § 10(d). This office encourages Mr. Richards and the Town to communicate to facilitate providing records more efficiently and affordably. Mr. Richards may wish to narrow his request. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate.

Ginger Buteau SPR25/3169 Page 5 November 12, 2025 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. Mr. Richards may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Eric Richards Robert J. Hennigan, Jr., Esq.