S. Howey v. Brookline, Town of - Town Clerk (SPR 20180465)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 24,2018 SPR181465 Mr. Patrick Ward Town Clerk Brookline Town Hall 333 Washington Street, Room 104 Brooltline, MA 02445-6853 Dear Mr. Ward: I have received the petition of S. Howey appealing the response of the Town of Brooltline (Town) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). The Town provided S. Howey with a fee estimate on March 29,2018 . Specifically, S. Howey asked if the records and audio files be emailed. On April 6,2018 , the Town responded saying the "audio files that [S. Howey] requested are contained in a secure server and can only be uploaded to the approved departmental media per the estimate sent to you on April 3, 20 18. This denial also applies to [the] April 5,2018 request, that the Department provide a USB drive to upload the files." S. Howey appealed the "Miscellaneous Charges" and the Town's refusal to use USB devices instead of CDs. 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, 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 black and white copies for both single and double-sided copies of a public record. G. L. c. 66, 5 10(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, 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, Id. redact or reproduce a record requested, but the fee shall not be more than $25 per hour. 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, 5 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

Mr. Patrick Ward Page 2 April 24,20 18 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, 5 lO(d)(iv). See G. L. c. 66, 5 lO(d)(iii); 950 C.M.R. 32.06(4). Appeal The records access officer (RAO) shall provide the public records to a requestor by electronic means unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in a usable electronic form. G. L. c. 66, 5 6A (d). It is my understanding that S. Howey is requesting an alternative means of production of the requested records. The Town should coordinate with S. Howey to provide the requested records in the most accessible and affordable manner available. If the Town is not able to produce the records via USB as requested by S. Howey, the Town should work with S. Howey to find another possible way, if available, to produce the documents outside of the 47 CDs. 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, 5 1O (d)(iv). The Town mentions in an email on March 30,2018 to S. Howey that the charge of "6.5 hours at the rate of $28.76 (which is the rate of the computer technician malting the copies)" is part of the fee estimate. The Town has not met its burden to charge $28.76 for the computer technician under G. L. c. 66, 5 10(d)(iv) of the Public Records Law. Order Accordingly, the Town is ordered to review the requests and provide a revised fee estimate to S. Howey, made in accordance with the Public Records Law, its Access Regulations and this order within ten business days. This administrative appeal is now closed. 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, 0 Rebecca S. Murray Supervisor of Records cc: S. Howey