Bruce Hodge v. Swansea, Town of - Town Clerk (SPR 20161137)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 16, 2016 SPR16/1137 Arthur D. Frank, Jr., Esq. Law Offices of Arthur D. Frank 209 Bedford Street, Suite 402 Fall River, MA 02720 Dear Attorney Frank: I have received the petition of Bruce Hodge appealing the response of the Town of Swansea - Town Clerk (Town) to a request for public records. G. L. c. 66 § 1 O(b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Hodge requested a certified copy of the Town's most current version of the General By-Laws. Town responses On October 17, 2016, the date of Mr. Hodge's request, Town Clerk Susan E. Taveira provided a response that informed Mr. Hodge that she is currently unable to provide him with a "certified copy" of the by-laws that he obtained a copy of from the Office of the Board of Selectmen because that record, the 1988 version of the by-laws has not been updated with changes. She further stated that she could not provide a certified copy of the zoning by-laws until she could review what has and has not been included in them. In your December 1, 2016 fee estimate on behalf of the Town, you assessed a one hundred thirty-three dollar and sixteen cents ($13 .16) fee, which includes four hours and forty five ( 4.75) minutes of Labor, three hundred and seventy-seven pages of copies at five cents ($.05) per page and a ten dollar ($10.00) charge for certification of the record. Furthermore, you state, "no work shall commence until payment is received. The certified copy will be available after December 20, 2016, but before December 25, 2016." Mr. Hodge appealed the response. Fees and fee estimates A records' custodian may assess a fee for complying with a public records request, however the fees must be reasonable and in compliance with the Public Records Access Regulations. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a 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

Arthur D. Frank, Jr., Esq. SPR16/1137 Page 2 December 16, 2016 request for public records is expected to exceed ten dollars ($10.00), custodian ofrecords shall provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive records. The Town has listed a $104.21 charge for "labor" at 4.75 hours at the hourly rate of $21.96. Please be advised that the Town must use the defined terms for tasks that are allowed under the Regulations. There is no task defined by the Regulations as "labor." 950 C.M.R. 32.06 (fees for public records). The has failed to describe what tasks the Town Clerk's Office will conduct that will take over four ( 4) hours to complete. Mr. Hodge has contended that the Town Clerk has not updated the by-laws on a regular basis, and that he believes that he is being charged for a task that is part of the Town Clerk's day to-day duties that she is already being paid for with her payroll check. Please be advised that the Town cannot charge a requester for records updating and organization. An attorney on my staff attempted to connect with you to discuss this appeal and clarify the estimated fee. Order I find the Town has failed to properly respond to a request for public records. Accordingly, the Town is hereby ordered to provide Mr. Hodge with a revised written, good faith estimate to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to th' offi eat pre@sec.state.ma.us. rs, Supervisor of Records cc: Bruce Hodge