Edward J. Marenburg v. Walpole, Town of - Town Administrator (SPR 20180714)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 30,2018 SPR181714 Mr. James Johnson Town Administrator Walpole Town Hall 135 School Street Walpole, MA 0208 1 Dear Mr. Johnson: I have received the petition of Edward Marenburg appealing the response of the Town of Walpole (Town) to a request for public records. G. L. c. 66, 5 IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Marenburg sent a letter to the Town on April 6,2018 requesting all emails regarding any work or bid proposals for the Fire Station for the Town as well as emails between the Town Administrator and identified parties. The Town responded to Mr. Marenburg's request via email on April 24,201 8 explaining that they would be providing a fee estimate given that the search yielded 2,750 responsive emails and the response would take up to 80-90 hours to process. The Town then provided Mr. Marenburg with a supplemental response on May 7,2018 which included a total fee estimate of $2,300.00. The Town asserts that due to the broad scope of the request, it is foreseeable that some responsive records may be withheld from disclosure under the attorney-client privilege and Exemption (d) of the Public Records Law. G. L. c. 4, 5 7(26)(d). Mr. Marenburg sent a letter to this office on May 16,2018 appealing the Town's supplemental response. Fee estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2)(b) (a records access officer shall provide written, itemized, good faith estimate). Once fees are paid, a records access officer must provide the responsive records. A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, 5 10(d). The fees must Id. reflect the actual cost of complying with a particular request. A maximum fee of five cents ($.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). - 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. James Johnson Page 2 May 30,2018 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, 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, 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, § 1O (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 1O (d)(iv). See G. L. c. 66, 5 1O (d)(iii); 950 C.M.R. 32.06(4). Appeal The Town must provide a more detailed fee estimate in accordance with the Public Records Law and its Regulations. See G. L. c. 66, 10(d). The Town identifies 2,750 emails in which it will need to review for attorney-client privilege or Exemption (d). The Town estimates that it will take 2 minutes on average to read each email. It is unclear why 2 minutes is necessary for reviewing and segregating all categories of these emails. &g G. L. c. 66, 5 1O (d) (a records access officer may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection). The Town has not clearly explained which documents or categories of documents required the assessing of fees for segregation or redaction under the Public Records Law. G. L. c. 66, § lO(d)(iii). The Town's fee estimate must provide clarity on what documents are being produced, the reasons for redaction of documents, and the breakdown of fees for search, segregation and redaction for each category of records. If necessary, this office encourages both parties to communicate further to enable the Town to provide a more refined search for Mr. Marenburg if he is not satisfied with the fee estimate. See G. L. c. 66, tj 1O (b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Order Accordingly, the Town is ordered to provide Mr. Marenburg with a revised fee estimate 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

Mr. James Johnson Page 3 May 30,2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. Edward Marenburg