Herman, Colman v. Secretary of the Commonwealth-Administrative Services Division (SPR 20140526)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 16, 2014 SPR14/526 Mr. Paul McCarthy Budget Director Office of the Secretary of the Commonwealth Administrative Services Division One Ashburton Place, Room 1710 Boston, MA 02108 Dear Mr. McCarthy: I have received the petition of Colman M. Herman appealing the response of the Office of the Secretary of the Commonwealth-Administrative Services Division (Division) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Herman requested copies of expense records of Secretary of the Commonwealth William Francis Galvin that detail reimbursements for fuel expenses and use of an electronic toll payment device (transponder). You provided a fee estimate and Mr. Herman appealed. Mr. Herman appealed the assessment of $.30 per page for copies. Mr. Herman also appealed the estimate generally. 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 ($10.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). In most instances, as indicated by the Regulations, a custodian of records may assess a maximum fee of twenty cents ($.20) per page for a photocopy of a public record. See 950 C.M.R. 32.06(1)(a); however, an agency may charge a higher fee if authorized to do so by statute. 950 C.M.R. 32.06(1 ). The statutory authority granted to the Secretary of the Commonwealth for the $.30 per page fee for copies of public records is found in Section 178 of Chapter 184 of the Acts of 2002, which permits the Divisions ofthe Secretary of the Commonwealth to charge $.30 per page for "document copies." These fees have been in effect since July 1, 2002. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Paul McCarthy SPR14/526 Page Two October 16, 2014 In a June 22, 2010 email to former Supervisor of Records Alan N. Cote, Janet Fogel, Deputy General Counsel to the Executive Office for Administration and Finance, stated her opinion that "the 30 cent charge is intended to apply to copies of corporate documents and other related filings, rather than to copies of public records generally." It is the view ofthis office that this assessment is based upon a review of the Administration and Finance Regulations found in 801 C.M.R. 4.02 (950) (40); however, as indicated above, the authority to charge $.30 per page for document copies emanates from the Acts of2002. Accordingly, it is the finding of this office that Divisions of the Secretary of the Commonwealth are permitted to charge $.30 per page for copies of records. 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). I find that the estimate you provided was created in a manner consistent with the Regulations. The estimate explains where the records are located, the job titles of persons responsible for pulling and reviewing the records including hourly rates for each employee, and the estimated number of copies. Accordingly, whereas I find the Secretary of the Commonwealth is permitted to assess a fee of $.30 per page for copies of records, and further, whereas I find the remainder of the estimate to be in compliance with the Regulations I will consider this administrative appeal closed. In the event a request for reconsideration of this appeal is honored by this office an acknowledgment will be provided to all parties, followed by a written determination by this office, to be provided within fifteen (15) business days. Requests r reconsideration filed more than thirty (30) days after the date of this letter will not be consi e ed . w~ . Supervisor of Records cc: Mr. Colman M. Herman