Joseph A. Padolsky v. Somerville, City of (SPR 20180613)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 8,2018 SPR18/613 David Shapiro, Esq. Assistant City Solicitor City of Somerville 93 Highland Avenue Somerville, MA 02 143 Dear Attorney Shapiro: I have received your petition on behalf of the City of Somerville (City) requesting permission to charge more than $25 an hour for the provision of public records. G. L. c. 66, 9 1O (d)(iv). On April 1 1,201 8, Attorney Joseph Padolsky requested four categories of records relating to "any and all Professional StandardsIInternal Affairs investigations." Petitions regarding fees The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, 5 1O (d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, 5 lO(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor rnay approve a municipality's petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, 5 1O (d)(iv). The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without 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 Shapiro, Esq. Page 2 May 8,2018 redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § lO(d)(iv). Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, 5 10(d). The fees must reflect the actual cost of complying with a particular request. @. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, 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 IO(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). 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 CMR 32.06(4). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Conclusion The City submitted their petition on May 2,2018 , more than ten business days after receipt of the request. In light of the fact the City has not demonstrated it submitted a timely petition, permission to assess fees of more than $25.00 cannot be granted. 950 C.M.R. 32.06(4)(g). Sincerely, Rebecca S. Murray V Supervisor of Records cc: Joseph A. Padolsly, Esq.