Brooks A. Ames v. Brookline, Town of - Town Clerk (SPR 20180908)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 26, 2018 SPR18/908 Patrick J. Ward Town Clerk Town of Brookline 333 Washington Street, Room 104 Brookline, MA 02445 I have received your petition on behalf of the Town of Brookline (Town) seeking to charge a fee in excess of $25 an hour. G. L. c. 66, § 10(d )(iv). As required by law, the Town furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv)(2). On May 3, 2018, Brooks Ames requested "all communications between the Town and the claimants concerning the settlement agreements." Petitions for ability to assess fees 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, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. 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 (Supervisor) under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). The 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, the fee is necessary such that the request could not have been prudently completed without the redaction, segregation or fee in excess of $25 per hour, and the amount of the fee is reasonable and the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § 10( 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

Patrick J. Ward SPR18/908 Page2 June 26, 2018 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. Id. The Town's Petition In its June 19, 2018 petition, the Town seeks "approval to charge Mr. Ames the quoted fee of $225 per hour to search for, segregate, and redact the requested records in the three cases identified on the referenced spreadsheet, and an extension of time to produce the responsive records within ten days of the date the fee is produced." The Town explains "[o]n May 4, 2018, the undersigned requested authorization from you to charge Mr. Ames a fee of $53 .66 per hour to search for, segregate, and redact the requested records" and "the Supervisor of Public Records issued a determination authorizing the requested fee of $53.66 per hour." See SPRl 7/630 Determination of the Supervisor of Records (May 11, 2018). Further the Town explains "upon receiving the estimated fee and initiating the search for the requested records, staff counsel determined that in three of the cases the Town was represented by outside counsel, and outside counsel has since advised the Legal Department that searching for, segregating, and redacting the requested records in these three cases is estimated to cost $2,025.00 (3 cases X 3 hours X $225/hour), which will be billed to the Town." The timeframe for submitting a fee petitions, 950 C.M.R. 32.06(4 )(g), provides that "petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records." It appears the School District received the request on May 3rd and submitted its petition on June 19t\ more than ten business days after receipt of the request. Conclusion Consequently, I decline to grant the School District's petition to charge $225 per hour for time spent segregating and redacting records responsive to request 4. See G. L. c. 66, § lO(d)(iv). Accordingly, the Town must provide the records in compliance with this determination, the Public Records Law, and its Access Regulations. Sincerely, Rebecca S. Murray Supervisor of Records cc: Brooks Ames