Maria Karas v. Pembroke, Town of - Town Administrator (SPR 20180316)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 23, 2018 SPRlS/316 Sabrina Chilcott Office of the Town Administrator 100 Center Street, Room 10 Pembroke, MA 02359 Dear Ms. Chilcott: I have received the petition of Maria Karas appealing the response of the Town of Pembroke (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Karas requested the following records from the Town: 1) Minutes/videos from each Planning Board meeting regarding 346 Washington Street Smith & Sons site plan approval... · 2) Any new documentation submitted to the Conservation Committee on and after 1/24/2018, besides the Peer Review letter already provided regarding Smith & Sons application. 3) Any permits on delineated areas that have already been filled 346 Washington Street. 4) Documents submitted to DEP in 2016 by the Conservation Commission regarding wetland areas changes and delineation for 346 Washington Street, including documents used that supported decision made to submit such changes and meetings held, including support documents of notification to abutters before changes to wetland delineation. 5) All information regarding each of CHIP-TECH multiple fires, including fire reports, costs to the town, and all available documents on at [sic] 346 Washington Street, while CHIP-TECH was operating. Including, residents [sic] complaints, investigation done and outcomes 6) Documents relevant to permits to CHIP-TECH site approval from all Planning Board, Conservation Commission, including appeals. The Town responded to her request providing a fee estimate. Unsatisfied with the Town's response, Ms. Karas filed a petition with this office and this appeal was opened as a result. 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 Pembroke SPRlS/316 Page2 March 23, 2017 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. 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, § lO(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. 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, § 10(d )(iv). See G. L. c. 66, § 10(d )(iii); 950 CMR 32.06(4 ). The Town's March 1st fee estimate In its March 1st fee estimate the Town indicates "[it] anticipates that it has records responsive to [Ms. Karas'] request. However, given the broad scope of [her] request, and the fact that responsive records are likely to exist only in hard copy and not in any electronic form or database, searching for responsive records will be very time consuming." The Town indicates it is assessing a fee of $3,059.86 for a total of 128 hours of search time at various pay rates all indicated to be attributable to "[t]he lowest paid employee capable of performing [the] search." As indicated above, Ms. Karas' request for records was divided into six requests numbered 1 through 6. The Town assessed a fee for requests 2 through 6. Fees to search for, compile, segregate, redact or reproduce a record request 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. Id. A municipality may not charge for segregation and redaction unless required by law or a petition has been filed and approved by the Supervisor of Records. G. L. c. 66, § lO(d); see also 950 C.M.R. 32.06(4). For request 2, the Town assessed the following fee, "Conservation Commission-2 hours

Town of Pembroke SPR18/316 Page 3 March 23, 2017 at $22.30 = $22.30 [sic]" indicated to be the rate of "an Administrative Assistant." For request 3, the Town assessed the following fee, "Conservation Commission -4 hours at $22.30 = $44.60 [sic]" indicated to be the rate to be attributable to "an Administrative Assistant." For request 4, the Town assessed the following fee, "Conservation Commission - 10 hours at $22.30 = $267.60 [sic]" claiming the rate attributable to "Administrative Assistant." For request 5, the Town assessed the following fee, "Building Department - 21 hours at $25.00/hour = $525.00," "Board of Health- IO hours at $23.50/hour = $235.00," "Fire Department- 50 hours at $25.00/hour = $1,250.00," "Board of Selectmen's office - 5 hours at $20.49/hour = $102.45" claiming the "hourly rates are for administrative assistants." The Town explains that "[t]his request is extremely broad, and requires a review of virtually all town records across numerous departments, for the approximate 17 year-period that CHIP-TECH operated a facility at 346 Washington Street." Additionally, the Town indicates that "the Town does not have any single document or sets of documents that identify 'costs to the town' specifically related to any fires at the CHIP-TECH site on 346 Washington Street." For request 6, the Town assessed the following fee, "Conservation Commission- 19 hours at $22.30 = $446.00 [sic]," "Zoning Board of Appeals - 6 hours at $23 .80 = $142.80," and "Planning Board - 1 hours at $24.11/hour = $24.11" claiming the "hourly rates are for administrative assistants." Although the Town states "the broad scope of [Ms. Karas'] request and the fact that the responsive "records are likely to exist only in hard copy and not in any electronic form or database" as its reason for charging the fee, it remains unclear why the indicated amounts of time are necessary to complete the search. Based on the Town's response, I find that the Town has not explained with specificity why the estimated amounts of time are required to produce responsive records. Specifically, it is unclear why the Town requires a total of 128 hours to search for responsive records. For example, the Town has not explained with sufficient specificity the scope of the search required. Employee time The Regulations provide that 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). The Town's fee estimate indicates that "[t]he Town's population as of the last Decennial U.S. Census was approximately 17,837 residents." Thus, I find the Town may assess a fee for the first two hours of time spent searching for, segregating, redacting, and reproducing a requested record. For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consisient with G. L. c. 66, § 10(d ). I understand a Public Records Division staff member contacted your office about this appeal.

Town of Pembroke SPR18/316 Page 4 March 23, 2017 Order Accordingly, the Town is hereby ordered to provide Ms. Karas with a response to the request, provided 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: Maria Karas