Gerald J. Whritenour v. Plymouth, Town of - Town Manager (SPR 20171066)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 14, 2017 SPR17/1066 Connor Anderson Public Records Access Officer/A rchivist Town of Plymouth 11 Lincoln Street Plymouth, MA 02360 Dear Mr. Anderson: I have received your petition on behalf of the Town of Plymouth (Town) requesting permission to charge more than $25 an hour for the provision of public records. G. L. c. 66, § 10(d)(iv). As required by law, the Town furnished a copy of this petition to the requester. G. L. c. 66, § 1 0( d)(iv)(2). Gerald J. Whritenour requested "a viewing of all printed/electronic materials (including responses, proposals, committee review, ranking of firms, scores awarded, meeting minutes), videotape, and/or tape recordings of information regarding the bidding/construction of the North Plymouth Fire Station Project." The Town seeks permission to assess fees at an hourly rate of $37.50 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, § 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 first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). I find the Town has not established that this request was made for a commercial 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

Connor Anderson SPR17/1066 Page 2 August 14, 2017 purpose. See G. L. c. 66, § 10 ( d)(ix). 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § IO(d)(iv). Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 1 0( d). The fees must reflect the actual cost of complying with a particular request. I d. A maximum fee of five cents ($.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 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, § 1 0(d )(iii). Where appropriate, municipalities may include as part ofthe 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, § IO(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, § 1 0( d)(i ii); 950 CMR 32.06(4 ). Current petition In the Town's petition you indicate "[t]he requester is asking for us to have all the records ready for viewing within the next seven days (5 business days)." You assert that in light ofthis "I think it is fair to increase the hourly fee of work done after the first two hours from $25.00/hr to $37.50/hr (standard time-and-a-halfrate for a 'rush job') since they are requiring this material well before the mandated 15 business days after the payment details are worked out." In an email dated August 10, 2017 the Town informed Mr. Whritenour that it would take four hours to produce these records, two of which would be free of charge in accordance with G. L. c. 66, § 10 ( d)(iii). Conclusion I find the Town has not met its burden to establish that the request could not have been

Connor Anderson SPR17/1066 Page 3 August 14, 2017 prudently completed without a fee in excess of $25 per hour. See G. L. c. 66, § 10 ( d)(iv). Therefore, I decline to grant the Town's petition to charge $37.50 per hour to produce responsive records. The Town must provide the records in compliance with this determination, the Public Records Law, and its Access Regulations. Mr. Whritenour may appeal the Town's August 10th response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Gerald J. Whritenour