Colman Herman v. Wellesley, Town of (SPR 20171679)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 14, 2017 SPR17/1679 Meghan Jop Town of Wellesley Wellesley Town Hall 525 Washington Street Wellesley, MA 02482 Dear Ms. Jop: I have received the petition of Colman Herman appealing the response of the Town of Wellesley (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, on November 6, 2017, Mr. Herman requested "copies of invoices submitted by the Town of Wellesley's outside counsels for matters related to the public records requests of [an identified individual] for the period January 1, 2016 to the present." The Town responded on November 13, 2017 and provided responsive records. After receiving the response, Mr. Herman contacted the Town to redact records so that it reflects only the invoices of the identified individual. The Town responded to this request by providing a fee estimate. The Town's December 6th letter to the Supervisor of Records (Supervisor) In its December 6th letter to the Supervisor, the Town indicated that "because Mr. Herman objects only to an estimate provided for the creation of new records, Mr. Herman's appeal must be dismissed." The Town claims the appeal must be dismissed because a records access officer is not required to answer questions or create a record in response to a request. Further, the Town claims there is no legal basis under the Public Records Law to redact responsive records as requested by Mr. Herman. The Town claims it "does not possess invoices redacted in the manner requested by Mr. Herman, nor does the Town have access to any means by which data extract could be created to limit the information to the particular subset he requested. Rather, responsive information contained in the invoices cannot be segregated from nonresponsive information except through: ( 1) review of individual billing items by the Town's attorneys to discern responsive and nonresponsive information; and (2) the creation of a new copy of the same invoices already provided, but in which responsive information is highlighted or nonresponsive 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

Meghan Jop SPR17/1679 Page2 December 14, 2017 information is redacted .... [T]herefore any further response to the Second Request would necessarily require the creation of new records." Although the Town claims it has to review individual billings to discern or highlight responsive from nonresponsive records, it is unclear how this review process does not constitute a search or segregation of a record. The Town is reminded that under the Public Records Law, "furnishing a segregable portion of a public record shall not be deemed to be creation of a new record. This applies to a responsive record in the form of an extract of existing data, as such data exists at the time of the request and is segregable from nonresponsive and exempt data." 950 C.M.R. 32.07(1)(£). Accordingly, I find that although a records access officer is not obligated to create a record in response to a request, searching for and segregating responsive from nonresponsive records does not constitute creation of a record under the Public Records Law. 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, § lO(d). The fees must 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 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, § IO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 CMR 32.06(4). Fees to search for, compile, segregate, redact or reproduce a record request The Town indicates that, to redact the records to conform to Mr. Herman's request it would have to "prepare a new document to identify the billings associated with" the identified individual. The Town explains that the estimated time to perform the redaction is 2.5 hours and therefore, would assign a fee of $62.50 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

MeghanJop SPRl 7/1679 Page 3 December 14, 2017 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 task is 2.5 hours. The Town may not charge the requester a fee unless the Town can provide the requisite information demonstrating conformity with the population requirement. Employee time The Regulations provide that in cases where necessary to reproduce the requested records, a records access officer may charge a fee to search for, compile, segregate, redact or reproduce a record requested based on the hourly rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, § lO(d); see also 950 C.M.R. 32.07(2). Additionally, the reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. Although the Town indicates that" ... determining how much of that time is associated with [the identified individual's] requests would require a review by Town Counsel," it is unclear if the Town is using the hourly rate of Town Counsel. It is additionally uncertain whether the Town has used the hourly rate of the lowest paid employee capable of performing the task. See G. L. c. 66, § lO(d)(ii); 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 two and half hours is required to search for and redact responsive records. I understand a Public Records Division staff attorney contacted you about this appeal and you indicated the Town would provide a supplemental response to Mr. Herman. Conclusion Accordingly, whereas the Town has indicated that it will provide a supplemental response, I will consider this administrative closed with the proviso that the Town provide said response 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman