John Mieczkowski v. Hadley, Town of - Town Clerk (SPR 20180364)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 30, 2018 SPRlS/364 David G. Nixon Town Administrator Town of Hadley 100 Middle Street Hadley, MA 01035 Dear Mr. Nixon: I have received the petition of John Mieczkowski appealing the response of the Town of Hadley (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Mieczkowski requested a copy of all records pertaining to a construction project for a new Hadley Senior Center, including all correspondence to and from the Owners Project Manager, architect, Board of Selectmen and Town Administrator. On March 1, 2018, the Town provided a $17,775.96 estimate for the costs of providing Mr. Mieczkowski with the responsive records. Mr. Mieczkowski petitioned the Supervisor of Records (Supervisor) and this appeal was opened. Petitions to the Supervisor Mr. Mieczkowski petitioned this office for an appeal of the March 1st fee estimate; however, Mr. Mieczkowski did not provide the Town with a copy of his petition to the Supervisor. Mr. Mieczkowski is reminded that under the new requirements in the Public Records Law, when petitioning the Supervisor for an appeal, the requestor shall provide a copy of such petition to the Records Access Officer (RAO). 950 C.M.R. 32.08(1)(h). A Public Records Division staff member provided the Town with the appeal file, including Mr. Mieczkowski's petition. Fee estimate The Town's March 1st estimate indicates that there are an unknown quantity of emails and email attachments, letters and oversized plans and plan attachments. The Town offered what it indicates as its best estimate which was derived from a formula based on the 2.5 years that the 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

David G. Nixon SPR18/364 Page 2 March 30, 2018 project has been ongoing, and an estimate regarding how many records in the requested categories that the Town may create or receive in a given day, and multiplied per day, and per 2.5 years. This formula devised by the Town was used to assess the number of documents and the fee estimate to provide the documents. It is unclear whether the Town has searched for any of the project records to provide a more accurate response to indicate whether the Town has all of the records in the categories that Mr. Mieczkowski requested and that the Town assessed a fee. The Town estimated the following records that may be responsive to Mr. Mieczkowski's request: • 45 emails per week x 52.2 weeks per year x 2.5 years = 5,872.5 emails • 17 attachments per week x 52.2 weeks per year x 2.5 years= 2,218.50 attachment • 22 letters per week x 52.2 weeks per year x 2.5 years= 2,871 letters • 15 plans & reports per week x 52.2 weeks per year x 2.5 years= 1,957.5 plans & reports • 5 oversized plans per week x 52.2 weeks per year x 2.5 years= 652.5 oversized plans Secondly, the Town used the estimated numbers of records to provide a total cost per record category. The Town's $17,775.96 estimate indicates the total cost per record category and task, specifically: 5,872.5 emails printed at $.05 per computer-generated copy= $293.62 5,872.5 emails reviewed at 30 emails per hour x $25.00 per hour= $4,893.75 2,218.5 attachments printed at $.05 per computer-generated copy= $110.92 2,218.5 attachments reviewed at 30 attaclunents per hour x $25.00 per hour= $1,1848.75 2,871 letters printed at $.05 per computer-generated copy= $143.55 2,871 letters reviewed at 30 letters per hour x $25.00 per hour= $2,392.50 1,957.5 plans & reports printed at $.05 per computer-generated copy= $97.87 1,957.5 plans & reports reviewed at 30 pages per hour x $25.00 per hour= $1,631.25 Town's Legal Counsel estimates their cost to review documents= $600.00 The Town's fee estimate does not explain whether it has conducted an initial search to gauge a more accurate number of records. It is unclear whether the Town actually has all the requested records or categorizes of records in its possession. Your estimate is also assigning the bulk of the cost for review (segregation) ofrecords; however, the Town has not explained why it is necessary to segregate the records of the construction project, including segregation by the Town's Legal Counsel. Your March 1st estimate does not cite any laws that would require that the Town segregate and redact the project records, and allow the Town to charge fees to do so. Furthermore, the Town has not explained whether the hourly rate of $25.00 is the lowest paid hourly rate of the employee who could perform the tasks. A municipality may assess a reasonable fee for the production of a public record

David G. Nixon SPR18/364 Page 3 March 30, 2018 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, § 10(d )(i). The Town has estimated that copies of emails and email attachments, and plans and reports will be computer-generated printed copies. The records access officer shall provide the public records to a requestor by electronic means unless the record is not available in electronic form or the requester does not have the ability to receive or access the records in a usable electronic format. G. L. c. 66, § 6A(d ). Therefore, where emails and email attachments and other records appear to be in an original electronic format, the Town should provide those records in an electronic format, unless Mr. Mieczkowski notifies the Town that he wishes paper copies of those electronic records. 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, § 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 per hour. Id. It is unclear whether the Town has assessed the lowest paid hourly rate for the tasks necessary to provide the records, and whose hourly rates were used in the estimate. 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 C.M.R. 32.06(4). To the best of my knowledge, the Town has not submitted a petition under G. L. c. 66, § lO(d)(iv) with respect to these records. Therefore, if the Town intends to assess a fee for time spent segregating (reviewing) or redacting records responsive to Mr. Mieczkowski's request, it must explain how segregation or redaction is required by law. Finally, it is unclear whether any of the project records are readily available to allow Mr. Mieczkowski to review the records, ifhe chooses; or, whether the Town has suggested a reasonable modification of the scope of the request or offer to assist Mr. Mieczkowski to modify the scope, if doing so would enable the Town to produce the records more efficiently and affordably. See G. L. c. 66, § lO(b)(vii). I find that the Town has not met its burden under the Public Records Law to support its costs of upwards of $17,000 to produce the responsive records as reasonable. Order Accordingly, the Town is hereby ordered to provide Mr. Mieczkowski with a revised fee

David G. Nixon SPR18/364 Page 4 March 30, 2018 estimate for the project records, consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of the Town's revised fee estimate 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: John Mieczkowski