Kendra Dumont v. Shirley, Town of - Town Administrator (SPR 20170878)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 11, 2017 SPR17/878 Patrice Garvin Town Administrator Town of Shirley 7 Ready Way Shirley, MA 01464 Dear Ms. Garvin: I have received the petition of Kendra Dumont appealing the June 19, 2017 response of the Town of Shirley (Town) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Dumont requested a copy of: 1. The totality of expenses incurred by the Town concerning the recall action, including attorney fees and internal expenses (manpower, materials, mailing, etc.); and 2. Expenses of Special Town Meeting up until August 19, 2016, expenses from August 19, 2016, and up until and including the signature certification hearing held on or about October 22, 2016, as well as expense(s) incurred by council and presented to the Town for the Superior Court hearing. Requirements for filing a petition for an appeal Whereas Ms. Dumont did not provide the Records Access Officer (RAO) with a copy of her petition to the Supervisor of Records (Supervisor), this office provided you with a copy. In petitioning the Supervisor, the requester must provide a copy of such petition to the RAO associated with such petition. 950 C.M.R. 32.08(1)(h). Prior appeal and determination The requested records and fees assessed by the Town were the subject of a prior appeal and determmatwn by the Supervisor. See SPR17/760 Determmatwn of the Supervisor (June 9, 2017). In my June 9th determination, I ordered the Town to clarify its May 2017 written estimate concerning the four to six hours of time to search, segregate and prepare the records. Additionally, I ordered the Town to clarify the total cost of the estimate for $100- $200 dollars, 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

Patrice Garvin SPR17/878 Page 2 July 11, 2017 break the estimated number of hours down per task and explain whose hourly rate the Town had utilized in crafting its estimate for the four to six hours of employee time. The lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce the record requested should be used for each of the tasks necessary to comply with this request. G. L. c. 66, § 10(d)(iii). However, the Town may not assess a fee at a rate more than $25 an hour unless such rate is approved by the Supervisor. G. L. c. 66, § 10 ( d)( iii). I further reminded the Town that under the new provisions of the Public Records Law, a municipality 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. See G. L. c. 66, § 10 ( d). In a June 19th revised estimate, the Town Clerk (Clerk) reduced the amount of time to 3- 6 hours at $25.00 per hour because he indicated the work needs to be done by the Town's attorneys, KP Law. The Clerk also provided a fee for copies at $.05 per page to copy not more ·than 200 pages of documents. The total June 19th estimate is $75-$150 dollars, reduced from the Town's May estimate of$100-$200. The Town has still not met its burden to clarify and support its estimated costs to provide Ms. Dumont with the records by not substantiating the amount of time per task or explaining why it is necessary for the Town's attorney to conduct the tasks. The Town has not detailed whether it reduced the amount of time by 2 hours, or stated that it is not required to waive the fees for the first 2 hours because the Town has 20,000 or fewer residents. See G. L. c. 66, § 10 (d )(iii). Finally, as I advised in my June 9th determination, the Town shall not assess a fee for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor in a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 1 0( d)( iii); see also 950 C.M.R. 32.06(4 ). The Town has not indicated whether the segregation or redaction is required by law. In a July 6th telephone conversation with a Public Records Division attorney, Ms. Dumont explained that there should be no need for compiling, segregation, redaction or reproduction because the records are already compiled and segregated. In her June 2ih petition to the Supervisor, Ms. Dumont states that the Town Administrator asked the Town's Legal Counsel to separate the monthly billing in order to identify the recall expenses because the Chairman of the Board of Selectmen specifically asked for these records. She also contends that the records were being maintained up until January 31, 2017 and the data was transferred into an Excel spreadsheet. Ms. Dumont also questioned why the Town opted to assess a fee for the public records when, as she informed this office, to her knowledge the Town had never charged fees in the past. An RAO is encouraged, but not required, to waive fees where disclosure is in the public interest.

Patrice Garvin SPR17/878 Page 3 July 11, 2017 950 C.M.R. 32.07(2)(k). However, an RAO may charge a reasonable fee to recover the costs of complying with a public records request. See G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.07. I find that the Town has not met its burden of specifically explaining the number of hours necessary for each task, or detailing how $25 an hour is the hourly rate of the lowest paid employee who has the necessary skill required to perform the task, or whether the. segregation or redaction is required to by law. See G. L. c 66, § 10(d)(iii); see also 950 C.M.R. 32.06(4). Finally, I find that the Town must use its superior knowledge of its records to determine whether the records have previously been compiled. Order Accordingly, the Town is hereby ordered to provide a detailed response to justify the fees assessed for Ms. Dumont's request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma. us. Ms. Dumont may appeal the substantive nature of the supplemental response within 90 calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Kendra Dumont William Oelfke, Town Clerk