Justin Grasso v. Dennis, Town of (SPR 20253598)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 19, 2025 SPR25/3598 Gabrielle Osborn Town of Dennis Department of Public Works 120 Theophilus F. Smith Road South Dennis, MA 02660 Dear Gabrielle Osborne: I have received the petition of Justin Grasso, of Foundation for Fair Contracting of Massachusetts, appealing the response of the Town of Dennis (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 26, 2025, Mr. Grasso requested “the certified payrolls and other compliance documents for the S. Dennis Wastewater Collection and Water Facilities project, Phase 1, Contract 2 Ge Bid date: 9/25/2024.” The Town provided numerous responses from August 26, 2025 through December 4, 2025, and assigned reference number 2025-0135 to this request. Unsatisfied with the Town’s responses, Mr. Grasso petitioned this office, and this appeal, SPR25/3598, 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

Gabrielle Osborn SPR25/3598 Page 2 December 19, 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). The Town’s Responses In its August 26, 2025 response, the Town acknowledged receipt of the request, and in its September 26, 2025 response, the Town provided a total fee estimate of $2000. The Town also provided the following information in support of its fee estimate: Based on your request, we have estimated the effort involved in order to create a response. As this is more than minimum effort by public records law, we have created an estimated effort and related cost which is shown below: Estimated Personnel Cost: Department Estimated Hours Hourly Rate Estimated Personnel Cost Public Works 80.00 $25.00 $2000.00 Total Estimated Personnel Cost $2000.00 In its October 9, 2025 response, the Town provided some records, and reiterated the fee estimate for the remaining records. In its December 4, 2025 response, the Town states that “we have provided a good faith estimate of the time involved in providing you the requested documents at the lowest rate possible for a qualified person to accomplish.”

Gabrielle Osborn SPR25/3598 Page 3 December 19, 2025 G. L. c. 66, § 10(e) It is unclear if the Town’s response met all the requirements under G. L. c. 66, § 10(b) to assess a fee for the requested records. Pursuant to the law, the written response must be not later than 10 business days after the initial receipt of the request for public records, made via first class or electronic mail and must: (i) confirm receipt of the request; (ii) identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves; (iii) identify the agency or municipality that may be in possession, custody or control of the public record sought, if known; (iv) identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based, provided that nothing in the written response shall limit an agency’s or municipality’s ability to redact or withhold information in accordance with state or federal law; (v) identify any public records, categories of records, or portions of records that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought; (vi) identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein; (vii) 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 agency or municipality to produce records sought more efficiently and affordably; (viii) include an itemized, good faith estimate of any fees that may be charged to produce the records; and (ix) include a statement informing the requestor of the right of appeal to the supervisor of records under subsection (a) of section 10A and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court under subsection (c) of section 10A. G. L. c. 66, § 10(b). Where Mr. Grasso submitted a public records request on August 26, 2025, and the Town provided the fee estimate on September 26, 2025, I find it is unclear whether the Town complied

Gabrielle Osborn SPR25/3598 Page 4 December 19, 2025 with G. L. c. 66, § 10(e). Specifically, the Town must demonstrate whether it provided a response to Mr. Grasso’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. Reasonableness of the Fee Estimate Based on the Town’s response, it is unclear why the Town requires 80 hours to produce the records. The Town must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, as noted above, in accordance with the Public Records Law, 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). The Town is advised that information that is “required by law” to be segregated or redacted is found in statutes that explicitly indicate that certain records or information are not public records. Some common examples are the student record statute (G. L. c. 71, § 34D), the Criminal Offender Record Information (CORI) Act (G. L. c. 6, § 167), and laws regarding the confidentiality of domestic violence records (G. L. c. 41, § 97D; G. L. c. 41, § 98F; G. L. c. 209A, § 8). These statutes operate through Exemption (a) of the Public Records Law. Segregation or redaction under the attorney-client privilege is also interpreted to be “required by law.” Accordingly, the Town must provide further explanation as to whether it is assessing fees for the segregation and redaction of the records, and whether the segregation and redaction is required by law. Certified Payroll Records The Town is also advised that disclosure of certified payroll records is governed by G. L. c. 149, § 27B, which states in relevant part: Every contractor, subcontractor or public body engaged in said public works by an agency ... or municipality or any subdivision thereof to which sections twenty- seven and twenty-seven A apply shall keep a true and accurate record of all mechanics and apprentices, teamsters, chauffeurs and laborers employed thereon, showing the name, address and occupational classification of each such employee on said works, and the hours worked by, and the wages paid to, each such employee, and shall submit weekly to the awarding authority by mail, first class postage prepaid, or by electronic mail, certified payroll records that shall consist of a complete copy of those records ... . . . The above-mentioned copies of payroll records and statements of compliance shall be available for inspection by any interested party filing a written request to the awarding authority for such inspection and copying.

Gabrielle Osborn SPR25/3598 Page 5 December 19, 2025 G. L. c. 149, § 27B. The statute provides that copies of certified payroll records must be available for inspection and copying by any interested party filing a written request to the awarding authority. Id. The statute does not limit disclosure, but rather evidences a legislative intent to make these records available for inspection. Where the language of the statute does not restrict disclosure, the statutory right of citizens to inspect under the Public Records Law prevails. See Att’y Gen. v. Collector of Lynn et al., 377 Mass. 151, 154 (1979) (statute providing that records be available to town officials does not exempt records since statute does not limit disclosure to the public); see also G. L. c. 4, § 7(26)(a) (exempting those records which are specifically or by necessary implication exempt from disclosure by statute). G. L. c. 149, § 27B evidences a legislative intent to make that information which is required to be provided by a contractor to the awarding authority open to public inspection. Further, in a 2002 Superior Court case, a construction company hired for a public construction project for the Massachusetts Water Resources Authority (MWRA) sought injunctive relief by asserting a privacy claim under Exemption (c) of the Public Records Law to prevent disclosure of the addresses and telephone numbers of the workers listed on the certified payroll records after the Supervisor of Records issued an order to the MWRA to disclose the records to the requesting party. See D’Amico, Inc., et. al. v. Massachusetts Water Resources Authority, Suffolk County Superior Court Docket No. 0284-CV-00369 (Nov. 6, 2002). In his April 29, 2002 finding, Judge Thomas Conley denied the plaintiff’s motion for a preliminary injunction, stating, “[t]here is very little likelihood, if any, of the plaintiff prevailing in this matter, and there has been no showing of irreparable harm.” Id. In this case, given that the certified payroll records are public under G. L. c. 149, § 27B, the Town may not withhold this information under Exemption (c) or any of the exemptions enumerated in the Public Records Law. See G. L. c. 4, § 7(26). Consequently, it is unclear whether the Town’s fee estimate includes fees for segregating and redacting the certified payroll records. Conclusion For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Accordingly, the Town is ordered to provide Mr. Grasso 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. Mr. Grasso may further appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Gabrielle Osborn SPR25/3598 Page 6 December 19, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Justin Grasso