Patrick Hannon v. Uxbridge, Town of - Town Clerk (SPR 20170442)

The Commonwealth of Massachusetts \Villiam Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 24, 2017 Courtney E. Mayo, Esq. Hassett & Donnelly, P.C. 446 Main Street, lih Floor Worcester, MA O1 608 Dear Attorney Mayo: I have received your petition on behalf of the Town of Uxbridge (TO'ivn) requesting permission to charge more than $25 an hour for the provision of public records. G. L. c. 66, § IO(d)(iv). As required by law, the Town furnished a copy ofthis petition to the requester on February 17, 2017. G. L. c. 66, § 1O (d)(iv)(2). This petition relates to multiple requests Patrick Hannon made to the Town. The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10( d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10( d)(iv). Analysis The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality's petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § lO(d)(iv). The Town has not established that this request was made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; 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

Courtney E. Mayo, Esq. Page 2 February 24, 2017 and 3) the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § 1 O(d)(iv). In its petition dated February 17, 2017 the Town seeks permission to "pass through to Mr. Hannon the charge of $85/hour for a third party vendor to assist the Town in its responses to Mr. Harmon's six (6) outstanding public records requests." You explain "[b]ecause of the number of requests by Mr. Hannon and the potential size of the responses, the Town utilizes an independent contractor to compile the electronic documents that Mr. Hannon is seeking." You indicate the third party vendor "is able to access the main server of the Town and extract those documents Mr. Hannon is requesting to put them into writable/searchable pdf format. The charge to the Town for this service is $85/hour." The Town further explains the work done by the third party vendor "creates a better, quicker production to Mr. Hannon" because the time it will take the vendor to "perform the relevant searches will be significantly less than the time it would take an employee of the Town in each department to search, press print, review and redact the document requests." You indicate .that having Town employees conduct their own searches "creates more room for human error" and would "cost less per hour but result in more hours and potentially the same, if not more, cost to Mr. Hannon." Although the Town has explained the benefits of using a third party vendor to prudently produce responsive records, it is unclear whether the $85.00 hourly rate is part of a fee estimate that otherwise "represents an actual and good faith representation by the municipality to comply with the request" as required by G. L. c. 66, § 10(d )(iv). The Town must provide information pertaining to whether "the amount of the fee is reasonable," for example, how many hours are needed for the third party vendor to complete the task compared to Tovro employees, and how "the fee is not designed to limit, deter or prevent access to requested public records." G. L. c. 66, § 10( d)(iv). Conclusion I understand an attorney on my staff contacted you and you indicated the Town would provide a supplemental response regarding these matters. Accordingly, I decline to opine on the City's petition to charge in excess of $25.00 an hour at this time. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Patrick Hannon