Butler, Arthur v. Holyoke, City of - Gas & Electric Department (SPR 20150582)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 7, 2015 SPRlS/582 Mr. James M. Lavelle Manager City of Holyoke Gas & Electric 99 Suffolk Street Holyoke, MA 01040-5082 Dear Mr. Lavelle: I have received the petition of Arthur Butler ofTheFoundation for Fair Contracting of Massachusetts appealing the response of the City of Holyoke Gas & Electric (HG&E) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Mr. Butler requested copies of records regarding the Hadley Falls Station Downstream Fish Ladder construction project. More specifically, Mr. Butler requested payroll record information submitted by Ciambro Corporation, as well as wage rate schedules. Fee Estimate On June 26,2015 HG&E provided Mr. Butler with a written estimate for the cost of providing him with copies of the certified payroll records. In accordance with the tenets of G. L. c. 149, § 27, HG&Eis providing Mr. Butler with the wage schedules free of charge. HG&E assessed fees for producing records and for paper copies. Mr. Butler was assessed for time to "produce " records using two (2) hours at the Accountant's hourly rate of thirty-seven dollars and eighty-four cents ($37.84), and four ( 4) hours of "help" from the Project Manager at an hourly rate of forty-two dollars and twenty-seven cents ($42.27). The total cost of six ( 6) hours of time assessed to "produce" records is $244.7 6, and $3 7.20 for 186 copies of records at twenty cents ($.20) per page. Mr. Butler appealed this estimate due to the hourly rate of $42.27 for four (4) hours of the Project Manager's time to comply with Mr. Butler's request for project records. Both you and this office attempted to speak by telephone regarding this appeal in recent days but attempts by both sides were unsuccessful. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. James M. Lavelle SPR15/582 Page Two December 7, 2015 A custodian of records may charge a fee to cover the costs of conducting a search for records and for physical copies of records, however those fees must be reasonable and in compliance with the Public Records Law Access Regulations (Regulations). G. L. c. 66, § 1O (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 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 Regulations. 950 C.M.R. 32.06. The Regulations provide that in cases where search 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. See 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). Record searches and the segregation of those records must be conducted by the lowest paid employee capable of conducting a search or segregation. The Public Records Law presumes that the lowest paid hourly rate of the person in the department where the records are generally held within the confines of the government offices is used to assess "search time" and "segregation time." The word "[p}roduce" is not a defined term within the Public Records Law or its Regulations. HG&E is advised to review the Regulations when responding to public records requests in the future, and to use the terminology and definitions from the Regulations in its written, good faith estimates. 950 C.M.R. 32.00. By statute, records such as those requested by Mr. Butler must be organized in such a way to allow the records to be readily available for public inspection. See G.L. c. 149, § 27B. It is not unreasonable that an Accountant would need two (2) hours to search for responsive records. What is not clear is how four (4 ) hours of "help" by a Project Manager could be considered "search time." Accordingly, HG&E is hereby ordered to provide Mr. Butler with a revised written, good faith estimate consistent with this order, the Public Records Law and its Access Regulations within ten (1 0) days. Once the fee is paid, HG&E must provide the responsive records. A copy of the revised written estimate must be provided to this office. It is preferable to send an electronic copy of this response to this office at re ate.ma.us. This appeal is closed. ~/·~rrr awn A. Williams Supervisor of Records cc: Mr. Arthur Butler