Stanley Mazurczyk v. Chelmsford, Town of - Town Clerk (SPR 20171277)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 19,2017 SPR17/1277 Patricia E. Dzuris Town Clerk Justice ofthe Peace Public Records Compliance Officer Town of Chelmsford 50 Billerica Road Chelmsford, MA 01824 Dear Ms. Dzuris: I have received your petition on behalf of the Town of Chelmsford (Town) requesting permission to charge for segregation and redaction as well as relief from the obligation to produce records. G. L. c. 66, § 10(d)(iv). As required by law, the Town furnished a copy ofthis petition to the requester. G. L. c. 66, § 1 0( d)(iv)(2). Stanley Mazurczyk requested "all complaints submitted via email" in the Town's "Outlook Folders." The Town seeks permission to assess fees for segregation and redaction of the responsive emails. Additionally, the Town has requested that this office compel the requestor to pay the fee for requested documents or to be relieved of its obligation to respond. 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 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

Patricia E. Dzuris Page 2 September 19, 2017 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). 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § 10(d)(iv). Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for pu,blic inspection. G. L. c. 66, § 1 0( d). The fees must reflect the actual cost of complying with a particular request. I d. A maximum fee of five cents ($.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, § 10 ( d)(i ii). 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, § 1 0( 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, § 1 0( d)(iv). See G. L. c. 66, § 10 ( d)(iii); 950 CMR 32.06(4 ). Current petition The Town requests permission to assess a fee for time spent redacting the email addresses contained in the responsive documents. Pursuant to the Public Access Regulations, 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 CMR 32.06(4 )(g). Given that this petition was made more than ten business days after receipt of the request from Mr. Mazurczyk, I decline to opine on the request to assess a fee for time spent redacting the email addresses contained in the responsive documents. Further, the Town requests that this office compel the requestor to pay the fee for requested documents. Under the Public Records Law, a records custodian does not need to

Patricia E. Dzuris Page 3 September 19, 2017 produce records until receipt of payment of a reasonable fee. G. L. c. 66, § 10(a)(iii). Seeing that the Town is not required to produce public records until it receives payment of a reasonable fee, it is unnecessary to compel the requestor to remit payment of a reasonable fee or to relieve the Town of its duty to produce public records. Supervisor of Records Determination SPR17/1177 Please be aware, my determination in SPR1711177 Supervisor of Records Determination (September 11, 2017) was that the Town must provide a revised fee estimate or supplemental response within 10 business days. Sincerely, Rebecca S. Murray Supervisor ofRecords cc: Stanley Mazurczyk