Kim Sherwood v. Town of Topsfield - Town Clerk (SPR 20171578)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 16, 2017 SPR17/1578 Mary E. (Beth) Willis Office of the Selectmen & Town Administrator Town of Topsfield 8 West Common Street Topsfield, MA 01983 Dear Ms. Willis: I have received the petition of Kim Sherwood appealing the response of Town of Topsfield (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Sherwood requested "all correspondence of the Committee sent or reeeived-by-email,regul-ar mail or other method, between-the timeperiod-o-f September 18, 2-017 to October 2, 2017." The Town responded to her request by providing a fee estimate. 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 tnust reflect the actual cost of complying with a particular request. Id. 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, § IO(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 :i;ate 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, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 CMR 32.06(4). 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

Town of Topsfield SPRl 7/1578 Page 2 November 16, 2017 · Fees to search for, compile, segregate, redact or reproduce a record request The Town indicates it possesses "[a]pproximately 4 emails and corresponding attachments (14 pages to be provided electronically)" as responsive records to Ms. Sherwood's request and includes a fee estimate of $18.75. The Town explains the fee includes "30 minutes of search time for $12.50" at "$25.00 (Board Chair)" hourly rate and "15 minutes of [redaction] time for $6.25" at a "$25 .00" hourly rate. The Regulations provide a municipality with a population of 20,000 or fewer may assess a fee for the first two hours of work performed. See 950 C.M.R. 37.07(2)(m)(2). Population data shall be determined by the decennial U.S. Census and it is the burden of the municipal RAO to provide such information in its response. See 950 C.M.R. 37.07(2)(m)(2)(i-ii). As the Town's fee estimate indicates the total'time required to perform the tasks is less than two hours, it may not charge the requester a fee unless the Town can provide the requisite information demonstrating conformity with the population requirement. Additionally, the Town has not identified and explained the applicability of any law requiring redaction which would permit the Town to assess fees for redaction. See G. L. c. 66, § 10(d ); see also 950 C.M:R. 32.06(4 ). I am not aware that our office has received a petition to assess a fee for redaction; therefore, the Town may not charge a fee for redaction unless the Town can demonstrate such redaction is requiredbylawandmee-ts its burdgn under 950 CM.R. · 37.07(2)(m)(2). See 950 C.M.R. 32.07(2)(m)(4); See also 950 CMR 32.06(4)(g)(petitions to assess fees to redact public records must be made within ten business days after receipt of a request for public records). Further, it is unclear why the "Board Chair" is the lowest paid person capable of searching for responsive records and additionally uncertain whether the Town has used the hourly rate of the lowest paid person capable of redacting the records in its estimate. See 950 C.M.R. 32.07(2)(i). The Town has not explained with specificity why the indicated amount of time is required to produce the responsive records. Specifically, it is unclear why 30 minutes are required to conduct a search for the emails. For example, the Town has not expfained the scope of the search required to locate the responsive records. Accordingly, I find the Town must revise its fee or provide a further explanation of how the fee assessed is consistent with G. L c. 66, § 10( d). I understand a Public Records Division staff member contacted you about this matter and you indicated the Town would provide a supplemental response to Ms. Sherwood.

Town of Topsfield SPRl 7/1578 Page 3 November 16, 2017 Order Accordingly, I will consider this administrative appeal closed with the proviso the Town provide Ms. Sherwood with a response to the request in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Sherwood may appeal the substantive nature of the Town's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Kim Sherwood