Roxanne Houghton v. Attleboro, City of - Office of the Mayor (SPR 20181270)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

September 5, 2018 SPR18/1270

The Honorable Paul Heroux

Mayor of Attleboro

Attleboro City Hall - Office of the Mayor 77 Park Street

Attleboro, MA 02703

Dear Mayor Heroux:

I have received the petition of Roxanne Houghton appealing the response of the City of Attleboro (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Houghton requested on August 2, 2018 “copies of all emails” sent by the Mayor to the City Council President and Vice President between July 15 to August 2, 201 8. Upon not reciveing a response form the City, Ms. Houghton appealed to this office on August 21, 2018.

Fee estimates

If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.MLR. 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, § 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 black and white copies for both single and double-sided copies of a public record. G. L. c. 66, § 10(d)@).

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,

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

The Honorable Mayor Paul Heroux SPR18/1270 Page 2 September 5, 2018

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, § 10(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, § 10(d)(iv). See G. L. c. 66, § 10(d) (iii); 950 C.M.R. 32.06(4).

A records access officer (RAO) may not charge a fee unless the RAO provides a written response in 10 business days following the receipt of the request in compliance with G. L. c. 66, § 10(b). G. L. c. 66, § 10(e). An RAO may 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 agency or municipality to produce records sought more efficiently and affordably. See G. L. c. 66, § 10(b)(vii).

Appeal

The City sent an email on August 23, 2018 to this office stating the cost of the records was possibly going to be a “couple hundred dollars.” It is not clear what documents will be produced to Ms. Houghton and if the documents pertain to her public records request. The City’s fee estimate must provide clarity on how many pages will be produced, the reasons for redaction of documents, if any, and any other associated fees. See G. L. c. 66, § 10(d)(i) (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).

The City may ask Ms. Houghton for a more refined search in order to provide the responsive records in a more efficient manner. See G. L. c. 66, § 10(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).

Also, the City may not be permitted to charge fees associated with the records request and revised fee estimate if the City did not provide a response to this request in compliance with this provision of the law. See G. L. c. 66, § 10(e); see also 950 C.M.R. 32.06(2)(c). It is unclear whether the City complied with G. L. c. 66, § 10(e) and 950 C.M.R 32.06(2)(c). Therefore, I find the City must demonstrate whether it responded to the records request within ten business days following receipt of the request in compliance with G. L. ¢. 66, § 10(e) and 950 C.M.R 32.06(2)(c).

Order

Accordingly, the City is ordered to provide Ms. Houghton with a fee estimate in a manner consistent with this order, the Public Records Law and its Regulations within 10 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.

The Honorable Mayor Paul Heroux SPR18/1270 Page 3 September 5, 2018

Sincerely,

Rebecca S. Murray Supervisor of Records

cc: Roxanne Houghton