Maria Karas v. Pembroke, Town of - Town Administrator (SPR 20180606)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 16, 2018 SPRlS/606 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. Previous appeal This request was the subject of a previous appeal. See SPR 18/316 Determination of the Supervisor of Records (March 23, 2018). I closed SPR18/316 by finding the Town 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, §lO(d) and ordered the Town to provide Ms. Karas with a 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 SPR18/606 Page 2 May 16,2018 response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations within ten business days. The Town provided another response to Ms. Karas on April 27, 2018. Unsatisfied with the Town's response, Ms. Karas petitioned this office and this appeal, SPRl 8/606, was opened as a result. Current appeal In Ms. Karas petition for appeal she indicates she is appealing the Town's fee estimate specifically as it relates to her request for "[d]ocuments 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." In its March 1st response the Town indicates it is charging for search time at the rate of the lowest paid employee capable of performing the task and for this request indicated the rate attributable to "Administrative Assistant." In its April 2ih response, the Town indicates it is charging the following fee: "Conservation Commission- 10 hours at $22.30 = $267.60." The Town explains that "[t]his request seeks more than just documents submitted by the Conservation Commission to DEP in 2016. It also seeks documents 'used that supported' any decision by the Conservation Commission to make such changes, all records of meetings held in this regard as well as documents of notification to abutters. This is, of course, a much broader request than simply copies of documents submitted by the Conservation Commission to DEP." The Town further indicates that Ms. Karas "has not narrowed the scope of the request or more precisely identified records she is seeking." Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 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, § 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).

Town of Pembroke SPR18/606 Page 3 May 16, 2018 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 ). Although the Town states this request is broad, its explanation does not go further than restatmg the language of Ms. Karas' request. As such, it remams unclear why the indicated amount of time is necessary to complete the search. Based on the Town's response, I find that the Town has not explained with specificity why the estimated amount of time is required to produce responsive records. Specifically, it is uncertain why the Town requires a total of 10 hours to search for responsive records. Additionally, it is unclear why the Town is charging a total of $267.60 for 10 hours of work if the rate is $22.30 an hour. 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 consistent with G. L. c. 66, §lO(d). I understand a member of the Public Records Division staff contacted your office about this matter. Order Accordingly, the Town is 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, ~a~ Supervisor of Records cc: Maria Karas