Julie Rossi v. Marlborough, City of - Retirement Board (SPR 20170757)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 9, 2017 SPR17/757 Margaret Shea Director Marlborough Retirement Board 25 5 Main Street Marlborough, MA 01752 Dear Director Shea: I have received your petition on behalf of the Marlborough Retirement Board (Board) requesting permission to charge for time spent segregating and redacting public records. G. L. c. 66 § lO(d)(iv). This petition relates to a request Julie Rossi made on June 2, 2017 requesting information on the Board's real estate, private equity, and hedge fund investments. Petition 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, § 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 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). 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) 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

Margaret Shea SPR17/757 Page 2 June 9, 2017 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § IO(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(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, § 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, § IO(d)(iv). See G. L. c. 66, § IO(d)(iii); 950 CMR 32.06(4). Current Petition Ms. Rossi requested records related to the Board's real estate, private equity, and hedge fund investments. Specifically, "alternative portfolio and performance data for private equity, real estate and hedge funds, committed capital, invested capital, distribution, and market value since its inception net IRR, and MOIC etc." She also requested information on "hedge fund share class, returns, exposures (net/gross/short/long), terms (soft lock, hard lock, high water mark, redemption frequency, hurdle rate etc.), net asset value, allocation size, allocation date etc. for hedge funds." The Board is seeking permission to charge $54.90 per hour for the provision of documents related to the public records request. In support of its request to charge an hourly rate over $25 an hour, the Board provides information about the nature of the responsive records. The Board indicates that whereas some of the data is available in the Board's financial reporting, most will require the coordination with the Board's investment consultants and investment managers.

Margaret Shea SPR17/757 Page 3 June 9, 2017 You further explain that the lowest paid employee, one of only two employees employed by the Board, does not have the necessary skill to provide records responsive to the request. You indicate that as the Director of the Board, you are in charge of financial reporting and the only employee with the skill necessary to fulfil Ms. Rossi's request. You assert that your hourly rate is $54.90. Consequently, the Board is seeking to charge the hourly rate of the Director of the Board, at $54.90 an hour. I find the Board has met its burden to explain how, given the nature of the responsive records and the Board's lowest paid employee's lack of skills necessary to comply with the request, the use of an hourly rate of $54.90 is reasonable. See G. L. c. 66, § 10(d )(iv). Conclusion For the reasons discussed above, I approve the Board's petition to charge in excess of $25 an hour for time to comply with this request for records. The Board is limited to charging the rate of $54.90 an hour in responding to this particular request. Please note that the requester has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G.L. c. 66, § § 10(d)(iv)(4); lOA(c). Sincerely, ~~ Rebecca S. Murray · Supervisor of Records cc: Julie Rossi