Kim Scully v. Scituate, Town of - Town Administrator (SPR 20181102)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 31, 2018 SPRlS/1102 Cynthia Amara Town of Scituate Murphy, Hesse, Toomey & Lehane, LLP 300 Crown Colony Drive, Suite 401 Quincy, MA 02169 Dear Attorney Amara: I have received your petition on behalf of the Town of Scituate (Town) requesting permission to charge more than $25 an hour for the provision of public records. G. L. c. 66, § lO(d)(iv). On June 29, 2018, Gloria Hollstein requested "[a]ll Depositions and Settlement agreement in the matter involving VINCENT KALISHES, TOWN OF SCITUATE AND RICHARD MURRAY." 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 horn, 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, § 10(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, § IO(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may 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, § 10( 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) 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

Cynthia Amara, Esq. SPR18/1102 Page 2 July 31, 2018 if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. G. L. C. 66, § 10(d )(iv). Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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, § 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 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, § 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, § lO(d)(iv). See G. L. c. 66, § 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 fur public records. 950 C.M.R. 32.06(4)(g). Conclusion The Town submitted their petition on June 29, 2018, more than ten business days after receipt of the request. In light of the fact the Town 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 Supervisor of Records cc: Gloria Hollstein