Lisa M. Peltier v. Dalton, Town of (SPR 20170349)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 29, 2017 SPR17/349 Kenneth E. Walto Town Manager Town of Dalton Town Hall 462 Main Street Dalton, MA O1 226-1601 Dear Mr. Walto: I have received the petition of Lisa M. Peltier appealing the response of the Town of Dalton (Town) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Peltier requested the opportunity to inspect or obtain copies of: 1. All written communications to and from Kenneth Walto pertaining to Lisa Peltier from June 1, 2015 through February 8, 2017; 2. All written communications to and from John Bartels pertaining to Lisa Peltier from June 1, 2015 through February 8, 2017; 3. All written communications to and from Sharon Messenger pertaining to Lisa Peltier from June 1, 2015 through February 8, 2017; and 4. All written communications to and from Laura Maffuccio pertaining to Lisa Peltier from June 1, 2015 through February 8, 2017. Appeal to the Supervisor A review of the petition for an appeal by a Public Records Division attorney reveals that the Town's Records Access Officer (RAO) did not receive a copy of Ms. Peltier's petition to the Supervisor of Records (Supervisor) requesting an administrative appeal. It is my understanding that this same Public Records Division attorney provided you with a copy of the appeal file via email. Ms. Peltier is reminded that under the new requirements in the Public Records Law, when petitioning the Supervisor for an appeal, the requester shall provide a copy of such petition to the RAO associated with such petition. 950 C.M.R. 32.08(1)(h). 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

Kenneth E. Walto SPRl 7/349 Page2 March 29, 2017 Records Access Officers (RAO) In her petition, Ms. Peltier states that the Town's website does not list the identity of the designated RAO for the Town. Under the new requirements in the Public Records Law, "[E]ach agency and municipality shall post in a conspicuous location at its offices and on its website, if any, the name, title, business address, business telephone number and business email address of each records access officer." G. L. c. 66, § 6A(c); see also 950 C.M.R. 32.04(4). Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § lO(d)(i). Municipalities may not assess a fee for the first two (2) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § lO(d)(iii). It is my understanding that the Town of Dalton may assess a fee for the first two (2) hours of employee time because the Town has an approximate population of 6,756 residents. Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition filed pursuant to G. L. C. 66, § 10(d )(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition filed pursuant to G. L. c. 66, § 10(d )(iv). See G. L. c. 66, § 10( d)(iii); 950 CMR 32.06(4). To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on the Public Records Division staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of the Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information.

Kenneth E. Walto SPR17/349 Page 3 March 29, 2017 Town's Fee Estimates Ms. Peltier sent the Town four separate public records reiuest letters on February gth. The Town sent Ms. Peltier two separate fee estimates on February 13t in response to her Requests Numbered 1, 2 and 3 and on February 14th for her Requests Numbered 1-4. In its February 13th estimate, the Town assessed four (4) hours of employee time for search, segregation and redaction of responsive written communications at the hourly rate of twenty-five ($25.00) dollars per hour, totaling $100.00. In addition, the Town charged a fee for two hundred (200) paper copies at five ($.05) cents per copy. The Town's February 13th estimate assesses a total cost of $110. 00 for the provision of records responsive to Requests Numbered 1- 3. In the Town's February 14th estimate, the Town combined all four (4) of Ms. Peltier's requests and provided her with a total cost of $137.50. This estimated fee includes the assessed (5) hours of search, segregation and redaction time for providing the written communications at an hourly rate of $25.00 per hour and the cost of 250 copies at five (.05) cents per page. Ms. Peltier appealed the hourly rate and questions why she must pay the Town the full costs upfront when she asked to be given access to review the records prior to obtaining any copies ofrecords. The Town has not stated why all the records must be provided in paper format. An RAO may assess a reasonable fee for the production of a public record, and shall provide a written, itemized, good faith estimate of any fees that may be charged to produce records. 950 C.M.R. 32.07(2)(a), (d). "Search time" is defined as the time needed to locate and identify, pull from the files, copy and re-shelve or refile a public record, and "redaction" as, to delete, or otherwise expurgate that part of a public record that is exempt from disclosure under G. L. c. 4, § 7(26)(a-u) or other legally applicable privileges from non-exempt material. 950 C.M.R. 32.02 (Definitions). An RAO shall not assess a copying fee for electronic copies or copies of public records transmitted via facsimile. G. L. c. 66, § 6A(d ); see also 950 C.M.R. 32.07(f). Further, a fee may not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor. G.L. c. 66, § 10( d)(iii). The Town has not met its burden of supporting its fee estimate, in particular the hourly rate of $25. 00 as the lowest paid hourly rate of the employee who is capable of searching for the responsive communication records. Nor has the Town met its burden of supporting any fees for segregation and redaction of the responsive communications. In order to charge for redaction, the Town must detail what exemptions in the Public Records allow the Town to withhold content from the records.

Kenneth E. Walto SPR17/349 Page 4 March 29, 2017 A Public Records Division attorney contacted you by telephone to discuss the appeal, however, was unable to reach you directly. It is my understanding that the appeal file was provided via email to assist the Town in responding further to Ms. Peltier's requests. Order Whereas the Town has not overcome its statutory and regulatory obligation of supporting the written, good faith estimate regarding the hourly rate and number of hours to search for and segregate the records, I find that the Town has not justified its estimate. Accordingly, the Town is hereby ordered to revise its estimate by supporting its hourly rate and number of hours for search time and segregation time. The Town must specifically cite exemptions and the reasons those exemptions apply and then provide Ms. Peltier with the revised estimate within ten (10) business days and in a manner consistent with this order, the Public Records Law and its Regulations. A copy of your revised estimate must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Ms. Peltier may appeal the substantive nature of the Town's revised estimate within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, ~urr~ Supervisor of Records cc: Lisa M. Peltier