Maria Karas v. Pembroke, Town of - Town Administrator (SPR 20180793)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen~isoro f Records June 14,2018 SPR181793 Sabrina Chilcott Office of the Town Administrator 100 Center Street, Room 10 Pembroke, MA 023 59 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, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Karas requested, in relevant part, the following records from the Town: 4) Documents submitted to DEP in 201 6 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. Previous appeals This request was the subject of a previous appeal. See SPRl813 16 Determination of the Supervisor of Records (March 23,2018 ). I closed SPR181606 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, tj lO(d). The Town provided another response to Ms. Karas on Current appeal In the Town's May 3othr esponse it indicates that "[w]ithout recounting [the Town's] prior responses to this request, which are incorporated by reference herein, the Town additionally notes the following: In November of 20 16, [an identified individual] of Grady Engineering appeared before the Conservation Commission on behalf of the property owner's application for a Request of a Determination of Applicability regarding a piece of the parcel as an isolated wetland. At the hearing, the Conservation Commission heard from Grady Engineering and from 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

Sabrina Chilcott Page 2 June 14,2018 [an identified individual] of South River Environmental. [An identified individual's] report stated a determination that the area identified as isolated wetland did not meet the criteria of a vegetative wetland. The Conservation Agent confirmed that [an identified individual's] report was an accurate representation of the resource areas on the property. This determination was subsequently forwarded to DEP." With respect to its search for responsive records, the Town indicates "[i]t is expected that identifying responsive records will require a search of records such as: the application materials, engineering drawings, the environmental report, administrative documents (i.e., notices, agendas) and the actual DEP filing. Due to their age, these records have been archived, and thus records in storage need to be reviewed in order to identify responsive records." The Town indicates that "[iln the interests of resolving this matter, the Town is willing to reduce by 50% its prior time estimate, for a total of five hours. At $22.30/hour, the total fee estimate for this portion of the request only is $1 11 - 50." In Ms. Karas' petition for appeal she indicates she is appealing the Town's fee estimate "to charge 5 hours of search of papers and the amount being charged." She asserts that "[ilt is hard to understand why the Town would archive documents submitted to them in less than two years.. .After the Town responded that 5 hours was still needed to search those documents, I reviewed the Conservation Commission meeting video speaking about the documents that I had requested.. . The Conservation Commission agent.. .clearly states that the documents and folders are in that office and seating [sic] on their desk waiting to be looked at." Ms. Karas states that "5 hours for a clerical to loolc at folders filed less than 24 months ago is excessive, in my opinion, and the public shouldn't be 'punished' for the town's inability to file public records efficiently. Lastly, the Town also adds that some documents could be in electronic form. Then, archived documents wouldn't take that long to search." Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, 5 1O (d). The fees must Id. reflect the actual cost of complying with a particular request. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a 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, 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, redact or reproduce a record requested, but the fee shall not be more than $25 Id. 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 1O (d)(iv).

Sabrina Chilcott Page 3 June 14,2018 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, 5 lO(d)(iv). See G. L. c. 66, 5 lO(d)(iii); 950 CMR 32.06(4). Based on the Town's response in conjunction with the issues raised in Ms. Karas' petition for appeal, it remains unclear why the Town requires five hours to search for responsive records. Specifically, based on Ms. Karas' assertion that the information she is looking for is located in un-archived, identified folders, the Town's response has not sufficiently provided information to justify charging for five hours of search time. Although the Town indicates the records have been archived, the nature of its archiving is unclear and specifically, whether the records remain in those identified folders. 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, 5 1O (d). I understand a Public Records Division staff attorney contacted your office about this matter. Order Accordingly, the Town is hereby 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, Rebecca S. Murray Supervisor of Records cc: Maria Karas