Colman Herman v. Dartmouth, Town of - Town Administrator (SPR 20170656)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 18,2017 SPR17/656 David Cressman Town Administrator Town of Dartmouth 400 Slocum Road Dartmouth, MA 02747 Dear Mr. Cressman: I have received your petition on behalf of the Town of Dartmouth (Town) requesting permission to charge for time spent segregating and redacting public records. G. L. c. 66, § 10 ( d)(iv). Colman Herman requested copies of all invoices submitted by the Town's outside lawyer who handled an identified case. This request was the subject of an appeal with this office. See SPR17 /567 Determination of the Supervisor of Records (May 4, 2017). The Town initially provided fee estimates dated April21, 2017 and April26, 2017. Mr. Herman appealed these responses. I closed SPR17/567 with the understanding that the Town would provide Mr. Herman a response in a manner consistent with the order, the Public Records Law and its Regulations. Petitions to assess 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, § 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). 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 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

David Cressman SPR17/656 Page 2 May18,2017 first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. I d. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10 ( d). The fees must reflect the actual cost of complying with a particular request. I d. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10 ( d)(i). Municipalities may not assess a fee for the first 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, § 10 ( 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, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 CMR 32.06(4). Current petition I understand a Public Records Division staff attorney contacted you and you indicated the Town is withdrawing its petition to charge for time spent segregating and redacting these records. You also explained the Town would provide a response to Mr. Herman that addresses applicable copying costs and the fee assessed for search time.

David Cressman SPR17/656 Page 3 May 18, 2017 Conclusion The Town must provide a response to Mr. Herman in a manner consistent with the May determination, the Public Records Law and its Regulations without delay. Mr. Herman may 4th appeal the substantive nature of the Town's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman