Amy MacMannis v. Easton, Town of (SPR 20171522)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 1, 2017 SPR17/1522 Katherine McNamara Feodoroff, Esq. Town Counsel Mead, Talerman & Costa, LLC Town of Easton 730 Main Street Millis, MA 02054 Dear Attorney Feodoroff: I have received your petition on behalf of the Town of Easton (Town) requesting permission to charge more than $25 an hour for the provision of public records. G. L. c. 66, § lO(d)(iv). As required by law, the Town furnished a copy of this petition to the requester. G. L. c. 66, § 10 ( d)(iv)(2). The requestor sought draft and approved minutes for both open session and executive session meetings of the Town Administrator Search Committee. 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, § 1 0( 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). 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 One Ashburton Place, Room 1719, Boston, Massachusetts 02108 (617) 727-2832• Fax: (617) 727-5914 o sec.state.ma.us/pre pre@sec.state.ma.us o

Katherine McNamara Feodoroff, Esq. Page 2 November 1, 2017 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § 10(d)(iv). Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10 ( d). The fees must reflect the actual cost of complying with a particular request. I d. A maximum fee of five cents ($.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, § 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, § 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 ). A petition to assess fees must be made within ten business days after receipt of a request for public records. 950 CMR 32.06(4 )(g). Current petition In the Town's petition you indicate "these documents are subject to privacy exemption as they are documents containing information relating to a specifically identified individual containing intimate details of a highly personal nature." The Town is claiming Exemption (c) applies for redaction of these records. The Town explains "[t]he Chairperson of this, now disbanded, Committee is a resident volunteer and feels unqualified to redact the documents to ensure that the candidate's privacy interests are properly and adequately protected." The Town further explains that if the Records Access Officer redacts the documents they would be "privy to information which she is not entitled to." The Town indicated they received the requestor's request on October gth and submitted this petition to assess fees over $25 an hour to the Supervisor on October 25th. In light of the fact the Town missed the statutory deadline to assess fees over $25 an hour, the petition may not be granted. See 950 CMR 32.06(4 )(g) (petition to assess fees must be made within ten business day

Katherine McNamara Feodoroff, Esq. Page 3 November 1, 2017 after receipt of a request for public records). Conclusion For the reasons discussed above, the Town's petition to charge in excess of $25.00 an hour is not granted. See G. L. c. 66, § 10(d)(iv). When preparing a fee estimate for the provision of the requested records, the Town must provide an estimate made in compliance with this determination, the Public Records Law, and its Access Regulations. The requestor may appeal the Department's fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, 1JJJuw~· Rebecca S. Murray Supervisor of Records cc: Amy MacMannis