Debra Garland v. Brockton, City of - Planning and Economic Development Department (SPR 20180188)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 27, 2018 SPR18/188 Rob May Director of Planning and Economic Development City of Brockton 45 School Street Brockton, MA 02301 Dear Mr. May: I have received the petition of Debra Garland appealing the response of the City of Brockton (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on January 27, 2018, Ms. Garland requested "records, documents, notes, communications, [e]ct. regarding the plans for the Walkers Playground, including all information regarding the status of the project and any and all changes to or regarding the project that make any changes to the project as was presented and promised to the residents." On February 6, 2018, the City responded to Ms. Garland's request, providing a fee estimate. Subsequently, Ms. Garland petitioned this office, appealing the fee estimate. SPR18/188 was opened as a result. Fee-Municipalities 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. 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) 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, § 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. ld. 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, § lO(d)(iv). 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

Rob May SPR18/188 Page2 February 27,2018 Further, 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, § IO(d)(iii); 950 C.M.R. 32.06(4). The School's fee estimate On February 6, 2018, the City provided a response to Ms. Garland that included a fee estimate "to prepare the files." The City indicated that it identified approximately "300 + emails and related attachments" that were responsive to the request. The City estimated that it took 6 hours to prepare the files to be sent electronically. The School provides "the cost per hour to prepare the files is $25.00 per hour, for a total of $150.00." Ms. Garland appealed the fee estimate on the ground "[t]he estimated accessed [f]ees seem to be excessive." After reviewing the City's February 6th response, the response was insufficient to explain the basis of the six hours to "prepare the files to be sent." Specifically, it is unclear what steps the City is taking to prepare the files. The City has also not shown they are a municipality with a population of 20,000 or fewer in order to assess a fee for the first two hours of work performed. See 950 C.M.R. 37.07(2)(m)(2). Further, the City has not indicated whether the hourly rate used is that of the lowest paid individual capable of performing these tasks. See G. L. c. 66, § 10 (d )(iii). For the reasons discussed above, I find the City must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10 (d ). A staff member of the Public Records Division contacted your office and the City indicated it would provide Ms. Garland with a supplemental response. Order Accordingly, the City is hereby ordered to provide a revised fee estimate made in accordance with the Public Records Law, its Access Regulations and this order within ten business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Ms. Gardner may appeal the substantive nature ofthe City's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray . Supervisor of Records cc: Debra Garland