Patrick Hannon v. Uxbridge, Town of - Town Clerk (SPR 20170447)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 15, 2017 Courtney E. Mayo, Esq. Hassett & Donnelly, P.C. 446 Main Street, 1i h Floor Worcester, MA 01608 Dear Attorney Mayo: I have received your petition on behalf of the Town of Uxbridge (Town) requesting permission to charge more than $25 an hour for the provision of public records. G. L. c. 66, § lO(d)(iv). As required by law, the Town furnished a copy of this petition to the requester on March 8, 2017. G. L. c. 66, § 10(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, § 10(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 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 March 15, 2017 redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § lO(d)(iv). The Town's most recent petition dated March 3th supplements its previous petition dated February 17, 2017. The Town continues to seek 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. Hannon's outstanding public records requests." The Town estimates a cost of $255.00 to provide records responsive to Mr. Hannon's request for emails sent, received, and deleted by Larry Lench and a cost of $595.00 to provide responsive "deleted" emails from four ( 4) different email accounts. These amounts were calculated using the $85.00/hour rate. The Town indicates this fee estimate is less than "the stated $2,000 amount Mr. Hannon agreed to pay for each request." Please note Mr. Hannon's expression of his willingness to pay a certain amount is not necessarily relevant when assessing the reasonableness of a fee estimate for the provision of public records. In a determination dated February 24, 2017 I found that although the Town explained the benefits of using a third party vendor to prudently produce responsive records, it was 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, § lO(d)(iv). Despite the Town's March 3th petition, it is unclear 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 Town employees, and how "the fee is not designed to limit, deter or prevent access to requested public records." G. L. c. 66, § lO(d)(iv). Conclusion For the reasons discussed above, Town's petition to charge in excess of $25. 00 an hour is denied. It is my understanding that the requested records may be the subject of a dispute in active litigation in U.S. District Court. See Hannon v. Genereaux, Civil Action No. 4:2017cv40022. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Mr. Hannon may wish to consider another means of seeking to obtain any existing responsive records.

Courtney E. Mayo, Esq. Page 3 March 15, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Patrick Hannon