Noah Bombard v. Southbridge, Town of - Office of the Town Manager (SPR 20171287)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 21, 2017 SPR17/1287 Yvonne M. Tortis Executive Secretary/Office Manager Town of Southbridge 40 Elm Street Southbridge, MA 01550 Dear Ms. Tortis: I have received your petition on behalf of the Town of Southbridge (Town) requesting permission to charge more than $25 an hour for the provision of public records. G. L. c. 66, § 10(d)(iv). Noah Bombard requested "all emails, from Jan. 22, 2014, in the inbox or sent folders of then-Police Chief Daniel R. Charette, former Town Manager Christopher Clark and then Police Lt. Shane D. Woodson that: A. Are from or to Amelia Peloquin and/OR, B. include the phrases 'Amelia Peloquin', 'Peloquin', 'Amelia', 'Beinema', or 'Torres' anywhere in the emails." 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 repre.sents 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, § .1 0( 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). One AshbU.rton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Yvonne M. Tortis Page2 September 21, 2017 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § 10 ( d)(iv). Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 1 0( d). The fees must reflect the actual cost of complying with a particular request. I d. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 1 0( 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 )(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, § 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 The Town submitted their petition on September 14, 2017, more than ten business days after receipt of the request for records. In light of the fact the Town failed to make a timely petition from the receipt of the request, permission to assess fees of more than $25.00 cannot be granted. 950 CMR 32.07(2)(b). Supervisor ofR ecords Determination SPR17/1176 Please be aware, my determination in SPR17/1176 Supervisor ofRecords Determination (September 11, 2017) was that the Town must provide a revised fee estimate within 10 business days.

Yvonne M. Tortis Page 3 September 21, 2017 Sincerely, ~~ Supervisor of Records cc: Noah Bombard