Alisa Nakashian-Holsberg v. Westford, Town of - Town Clerk (SPR 20170498)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 20, 2017 SPR17/498 Kaari Mai Tari Town Clerk Records Access Officer Town of Westford 5 5 Main Street Westford, MA 01886 Dear Ms. Tari: I have received your petition on behalf of the Town of Westford (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. G. L. c. 66, § 10(d)(iv)(2). Alisa Nakashian-Holsberg requested "monitoring video recorded during the dates of October 15 through December 1, 2016" for a specific property. Ms. Nakashian-Holsberg asked the Town to provide fee estimates for the provision of various time frames of responsive records, for example, "[a]ll video for the time period," "one day," "two successive days, etc ... ," so that she could decide whether to modify the request. The Town seeks permission to assess fees for segregation time at hourly rates in excess of $25 per hour. Petitions regarding fees 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, § lO(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, § lO(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve 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

Kaari Mai Tari Page 2 April 20, 2017 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, § IO(d)(iv). The Town has 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. G. L. C. 66, § 10(d )(iv). Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § IO(d)(i). Municipalities may not assess a fee for the first two 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, § IO(d)(iii). 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 under 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 under G. L. c. 66, § IO(d)(iv). See G. L. c. 66, § IO(d)(iii); 950 CMR 32.06(4). Current petition In the Town's petition you indicate that the responsive video recordings "are not maintained by Town staff, but, rather are solely held by the Town's consultant, MDM Transportation Consultants, Inc. The searching and segregation of the requested video monitoring on their video recording system requires specific technical assistance by the Town's consultant, not any official or employee of the Town." The Town further indicates "the video files are on the MDM servers and can only be accessed by trained MDM staff. There are no Town employees or officials trained on the video software." With respect to the hourly rates, the Town explains that the consultant company "charges

Kaari Mai Tari Page 3 April 20, 2017 the Town a fee of $150 per hour to search for, compile and reproduce videos by an engineer and $180 per hour to review/coordinate such records by a Principal Consultant." The Town provided estimates for the various time periods in Ms. Nakashian-Holsberg's request using these hourly rates. Despite the Town's assertion that it is necessary for a consultant to access the responsive records, the Town has not met its burden to establish that the rates of $150 per hour and $180 per hour are 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). For example, it is unclear whether any segregation time is appropriate nor is it clear if over two hours of employee time is needed to search for, compile, segregate, redact or reproduce the records for the various time periods Ms. Nakashian-Holsberg sought. Further, the Town must, to the extent feasible, adopt information storage and retrieval methods that permit the segregation and retrieval of public records in order to provide maximum public access. See G.L. c. 66, § 19(a). Conclusion For the reasons discussed above, the Town's petition to charge in excess of $25.00 an hour is denied. See G. L. c. 66, § lO(d)(iv). When preparing a fee estimate for the provision of the requested records, the Town must provide an estimate made in compliance with this determination, the Public Records Law, and its Access Regulations. Ms. Nakashian-Holsberg may appeal the Department's fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Alisa Nakashian-Holsberg