Hartley, Mary v. Orleans, Town of (SPR 20140341)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 26, 2014 SPR14/341 Mr. John F. Kelly Town Administrator Town of Orleans 19 School Road Orleans, MA 02653-3699 Dear Mr. Kelly: I have received the petition of Michael Farber on behalf of Mary Hartley appealing the response ofthe Town of Orleans (Town) to Mr. Farber's request for public records. See G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Farber requested copies of "all emails" received from January 1, 2010 to June 4, 2014 by a specifically identified member ofthe Town's Board of Health (Board) that "in any manner or respect contained obscenities or other derogatory remarks directed at" that Board member. My understanding is that as of June 5, 2014 the Board member is no longer a member of the Board or affiliated with the Town. In response to Mr. Farber's request you provided a fee estimate, and Mr. Farber has appealed that estimate. In particular, Mr. Farber objected to the Town conducting what he termed an '"umbrella' search of town offices or departments," as he believed any responsive records would be in the custody of the former Board member. It is my understanding that the former Board member returned all government records to the Town and has destroyed all duplicate copies; therefore, the Town is the custodian of any records that are responsive to Mr. Farber's request. A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of twenty cents ($.20) per page for a photocopy of a public record and fifty cents ($.50) per page for a computer print out of a public record. See 950 C.M.R. 32.06(1)(a). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. John F. Kelly SPR14/341 Page Two August 26, 2014 In addition to the copying fee, the Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1)(c). The Regulations define "search time" as the time needed to locate, pull from the file, copy and refile public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § 10(a). In your response you provided an estimated fee of $149.06 to cover the search time for Town staff to review the email records for approximately four years that may contain responsive information. I find the fee estimate to be in compliance with the Regulations. Accordingly, whereas the Town is the custodian of the responsive records, and further whereas the Town is entitled to assess a fee and obtain payment prior to commencing a search for the responsive records, I will consider this administrative ap eal c sed. Supervisor of Records cc: Mr. Michael Farber Mr. Michael Ford, Esq.