_ _ _ _ _ From Alan N. Cote Commonwealth of Massachusetts Supervisor of Records_ _ _ _ _ _ _ _ _ _
July 27, 2007
SPR07/181
I have received your petition appealing the fee estimate provided by the
Boston City Council (Council) with regard to your April 24, 2007 public records request.
See GL c66 s10b 2006 ed. (Supervisor of Records has authority to resolve public records appeals);
see also 950 CMR 32.08(2) (appeal process). Specifically, you requested copies of the stenographic
output for the Council meeting of either April 11, 2007 or April 4, 2007.
"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 town of the Commonwealth, unless falling within a statutory exemption.
GL c4 s7(26) 2006 ed. The statutory exemptions are strictly and narrowly construed.
Globe Newspaper Co. v. Dist. Att'y for the Middle Dist. 439 Mass 374, 380 (2003);
Att'y Gen. v. Ass't Comm'r of the Real Prop. Dep't of Boston 380 Mass 623, 625 (1980).
Public records, and any non-exempt, segregable portions thereof, are subject to
mandatory disclosure upon request. GL c66 s10a 2006 ed.;
see also In re Subpoena Duces Tecum 445 Mass 685, 687 n3 (2006);
Reinstein v. Police Comm'r of Boston 378 Mass 281, 289-90 (1979)
(the statutory exemptions are not blanket in nature).
Additionally, there is a presumption that all governmental records are public records.
GL c66 s10c 2006 ed.; 950 CMR 32.08(4). Therefore, it is the burden of the records
custodian to demonstrate the application of an exemption in order to withhold a requested record.
GL c66 s10c 2006 ed.;
see also Dist. Att'y for the Norfolk Dist. v. Flatley 419 Mass 507, 511 (1995)
(custodian has burden of establishing applicability of exemption)
By email dated May 8, 2007, Ms. Ann Hess Braga, Staff Director for the Council,
provided you with a written, good faith estimate of $270.00 for the cost of providing you with
the responsive records. See GL c66 s10a 2006 ed. (any person having custody of public
records shall furnish a copy thereof upon payment of a reasonable fee);
see also 950 CMR 32.06(2) (custodian shall provide written, food faith estimate where it expects costs to comply
will exceed ten dollars $10.00 There is a presumption that public officials perform their
public duties in an honest and impartial manner.
Lapointe v. License Bd. of Worcester 389 Mass 454, 459 (1983);
see also Konover Mgt Corp v Planning Bd of Auburn 32 Mass App Ct 319, 326 (1992)
(presuming that public officials will perform honestly and impartially).
While the Council may charge a fee for search, segregation and copies, these fees must
be reasonable and in compliance with the Public Records Access Regulations promulgated by
this office under the Public Records Law. See 950 CMR 32.06 (fees for public records).
Search Time
A custodian may charge a fee if complying with a request requires "search time".
See 950 CMR 32.03 (defining "search time") as the time needed to locate, pull from file, copy,
and re-file a non-computerized public record). A custodian may charge a pro-rated fee based on
the hourly rate of the lowest paid employee who is capable of performing the task.
950 CMR 32.06(1a). While the custodian is permitted to charge for search and segregation fees,
the fee charged should not serve as a deterrent for the requestor to access public records.
See Globe Newspaper Co v Boston Retirement Bd 388 Mass 427, 436 (1983).
In an August 1, 2007 telephone conversation, Director Braga explained to Rebecca Murray,
an attorney on my staff, that the stenographic output comes in the form of paper strips of
tape. These strips are on a continuous roll, which means care must be exercised in the
reproduction to ensure that the strips are not torn. Therefore, it takes approximately one hour of
staff time to copy thirty minutes of the Council meeting stenographic output. Director Braga
informed Attorney Murray this estimate is based on a one hundred page test performed by an
administrative assistant to determinate the amount of time necessary for copying. From this test,
it is estimated that it will require six hours of time to complete the copies of the output for an
entire meeting. The lowest paid employee in the office of the Council who is capable of
performing the task is an administrative assistant who is paid at the rate of $25.00 per hour.
The amount of time approximated by the Council to complete the copying is not
unreasonable given the difficulty in performing the copies of approximately 600 pages of
stenographic output tape which cannot be reproduced by ordinary means. Seeing that the
Council is permitted to charge the hourly rate of the lowest paid employee capable of performing
the labor necessary to copy these records, in addition to including the cost of $.20 per copy of the
records, the current cost estimate to perform all of these tasks is reasonable.
The search and segregation fee must reflect the actual cost of complying with a particular
request. If the cost is determined to be less than the estimated fee, Director Braga assured
Attorney Murray that the Council would refund the difference. GL c66 s10a 2006 ed.
As the fee estimate provided by the Council for the searching, segregating and copying of the
responsive records is reasonable, I will consider your appeal closed.
Very truly yours,
Alan N. Cote, Supervisor of Records
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cc:
Ms. Ann Hess Braga
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city.council at cityofboston.gov
Ense Petit Placidam Svb Libertate Qvietem
By the sword she seeks peace under liberty
Manus haec inimica tyrannis ense petit placidam sub libertate quietam
This hand of mine, which is hostile to tyrants, seeks by the sword peace and liberty.
[ letterhead. state arms from the Massachusetts state seal ]
http://en.wikipedia.org/wiki/Ense_petit_placidam_sub_libertate_quietem
The Commonwealth of Massachusetts
William Francis Galvin, Secretary of the Commonwealth
Public Records Division
1 Ashburton Place, 17th Floor
Boston, Massachusetts 02108-1512
tel 617 727-2832
fax 617 727-5914
http://www.sec.state.ma.us/arc/arcrmu/rmuidx.htm
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