Arthur A. Butler v. Northampton, City of - Department of Public Works (SPR 20180068)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 30 ,20 18 SPRl81068 Wayne Feiden Director of Planning and Sustainability City of Northampton - City Hall 21 0 Main Street Northampton, MA 0 1060 Dear Mr. Feiden: I have received the petition of Arthur Butler of The Foundation for Fair Contracting (Foundation) appealing the response of the City of Northampton (City) to a December 6,2017 request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Mr. Butler requested a copy of records regarding the Pleasant Street drainage relocation project, specifically: 1. All certified payroll records of George R. Cairns & Sons, Inc. and all subcontractors; 2. Apprentice training identification cards for each apprentice on the payroll; 3. Proof of OSHA 10 certification (per the Attorney General's 2008 advisory); and 4. All applicable, complete minimum wage schedules (free of charge). The City's January 1 dh response In a January 10,2018 email, as project manager for the Pleasant Street project and Director of Planning and Sustainability for the City, you provided Mr. Butler with a response, including a fee of $700.00 to provide the records. You stated in an email that the request was forwarded to you on January loth. You explained that the $700.00 fee estimate uses the lowest paid employee who is qualified to prepare the records and the City will need only one (I) hour to compile the records because they are in electronic format, which is how the records will be provided to Mr. Butler. However, in your estimate, you contend, "the very time consuming part of the project is redacting the partial social security numbers on the payroll records." On January 12,2018, Mr. Butler petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his January petition, Mr. Butler explained that he believes that the One Ashburton Place, Room 17 19, Boston, Massachusetts 021 08 (6 17) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Wayne Feiden Page 2 January 3 0,201 8 $700 fee estimate is prohibitive and may not be in compliance with the 20 17 Public Records Law. Status of the requester; reason for the request Mr. Butler states in his petition that the Foundation is a non-profit advocacy group that assists awarding authorities in ensuring that the prevailing rate is paid on public construction projects. The reason for which a requester seeks access to, or a copy of, a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. Bouaas v. Chief of Police of Lexin@on, 371 Mass. 59, 64 (1976). Accordingly, Mr. Butler's purpose in making the request shall have no bearing on the public status of any existing responsive records. Waiver of fees Mr. Butler also indicates in his petition that many municipalities and state agencies often waive the fees for requests from the Foundation; therefore, he asks the City to waive the fees for his request for the project records. Records access officers (RAOs) may waive or reduce the amount of any assessed fee upon a showing that: 1. disclosure of a requested record is in the public interest; 2. the request for records is not primarily in the commercial interest of the requester; or 3. the requester lacks the financial ability to pay the full amount of the reasonable fee. 950 C.M.R. 32.06(2)(k). Requirementsf or RAOs of responding to a public records request A review of the correspondence provided by Mr. Butler with his January 12 thp etition to the Supervisor for an appeal reveals that he requested the responsive records initially on December 6,2017 and again on January 8,2018 . It is unclear whether the City provided a response within ten (10) business days following receipt of Mr. Butler's December 6thr equest. An RAO may not charge a fee unless the RAO provides a written response in compliance with G. L. c. 66, $ 10(b) within ten business days following receipt of the request. G. L. c. 66, $ 10(e); see also 950 C.M.R. 32.06(2)(c). The written response shall be made via first class or electronic mail and shall:

Wayne Feiden Page 3 January 30,2018 (i) confirm receipt of the request; (ii) identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves; (iii) identify the agency or municipality that may be in possession, custody or control of the public record sought, if known; (iv) identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based, provided that nothing in the written response shall limit an agency's or municipality's ability to redact or withhold information in accordance with state or federal law; (v) identify any public records, categories of records, or portions of records that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought; (vi) identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein; (vii) suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably; (viii) include an itemized, good faith estimate of any fees that may be charged to produce the records; and (ix) include a statement informing the requestor of the right of appeal to the supervisor of records under subsection (a) of section 10A and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court under subsection (c) of section 10A. It is unclear whether the City complied with not only the ten (10) business day response requirement, but also with all applicable criteria required by a RAO in providing a response to a public records request. G. L. c. 66, 5 lO(b), (e); 950 C.M.R 32.06(2)(c). oth The City's January 1 fee estimate If the City demonstrates that it did provide Mr. Butler with a response in compliance with the Public Records Law, the City may assess reasonable fees to comply with the request.

Wayne Feiden Page 4 January 30,20 18 Public Records Law Fees (as of January 1,201 7) 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, 5 10(d). The fees must Id. reflect the actual cost of complying with a particular request. 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, 5 10(d)(i). Municipalities may not assess a fee for the first (two) 2 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, 5 lO(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 a. per hour. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor under a petition under G. L. c. 66, 5 lO(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 under a petition under G. L. c. 66, 5 lO(d)(iv). &e G. L. c. 66, 5 lO(d)(iii); 950 CMR 32.06(4). It is unclear how the estimate provided to Mr. Butler on January lothi s in compliance with the provisions of the Public Records Law with respect to fees. The City's estimate only states that it will take one (1) hour to compile the electronically-stored records, that the City will redact the social security numbers on the certified payroll records using the least paid employee who is qualified to prepare the records, and that the total cost to Mr. Butler is $700.00. The City did has not demonstrated this fee estimate is in compliance with the Public Records Law given that the City has not stated whether the hourly rate charged is the lowest paid employee who can compile and redact the social security numbers; whose hourly rate was used in assessing the fee; or the amount of time to redact the social security numbers. Nor did the City state what law requires the City to redact social security numbers, or that the segregation and redaction was approved by the Supervisor under a petition under G. L. c. 66, 5 lO(d)(iv). G. L. c. 66, 5 lO(d)(iii); 950 CMR 32.06(4). Further, the City has not established that it has a population of 20,000 or less which would permit it to charge for the first two hours of time spent to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, 5 1O (d)(iii). It is my understanding that an attorney in the Public Records Division contacted you about this appeal, but was unable to connect with you directly.

Wayne Feiden Page 5 January 30,20 18 Order Accordingly, the City is hereby ordered to provide a revised fee estimate in compliance with this order, the Public Records Law and its Regulations within ten (1 0) 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, w Rebecca S. Murray Supervisor of Records cc: Arthur Butler Donna LaScaleia