Cynthia B. Gardner v. Cotuit, Town of - Fire District (SPR 20181285)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 7, 2018 SPRlS/1285 Raymond Pirrone Treasurer Town of Cotuit Fire District 64 High Street Cotuit, MA 0263 5 Dear Mr. Pirrone: I have received the petition of Cynthia Gardner appealing the response of the Town of Cotuit Fire District (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Gardner requested records showing whether the Fire Chief worked on and received compensation for identified holidays. Ms. Gardner also requested that the May and June 2018 budgets be posted to the District's website. Prior appeal - SPRJ 8/1088 The requested information was the subject of a prior appeal based on a non-response of the Town. See SPR18/1088 Determination of the Supervisor of Records (Supervisor) (August 6, 2018). The Town provided a fee estimate on August 16, 2018 for $48.20. As a result of the estimate, Ms. Gardner petitioned the Supervisor. In her petition, Ms. Gardner expressed that the estimate did not describe the amount of time necessary for each task and the hourly rate used. She found the estimate to be excessive. As a result, the current appeal, SPR18/1285, was opened. Fees A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § lO(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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) 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, § lO(d)(iii). 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

Raymond Pirrone SPR18/1285 Page2 September 7, 2018 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, § 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, § lO(d)(iv). G. L. c. 66, § lO(d)(iii); 950 CMR 32.06(4). The Town's August 161 h and August 301 h fee estimate On August 16, 2018, the Town provided Ms. Gardner with a total fee estimate of $48.20. The Town's estimate states, "[a]fter discussion and research we have obtained a report from the payroll system that details the Chiefs pay for all pay periods in Fiscal 2018." The estimate also indicates that the Town redacted one-half of a page because it contains personal information not related to Ms. Gardner's question regarding holiday pay received by the Fire Chief. Further, your August 16th estimate states, "[i]t required two hours of research, production, redaction and coping to prepare these records for you." The estimate also included 4 copies totaling $0.20. Subsequently, after this office contacted the Town and the current afpeal was opened, on August 30th, the Town provided more detail regarding its initial August 16t fee estimate. The Town's August 30, 2018 "time summary" for Ms. Gardner's record request included the following details: 1. Prepared preliminary time estimate and communicated this to Ms. Gardner, 7 /26/18 including request for additional time due need for audit preparation time - 30 minutes; 2. Received and reviewed Ms. Gardner's response and suggestion to use internal FD system. Discussed with FD and determined that this system did not have the pay information that was requested. Communicated that result to Ms. Gardner on 8/1/18 - 30 minutes; 3. Phone conversation with SEC representative about request for time extension and rules regarding normal response time ( dates not certain); 4. Discussed alternative means of producing the requested information with the AT. Contact with payroll system provider to produce a report showing select or all pay periods in a fiscal year. Review of various report possibilities produced by system and selection of one best suited. This is not a normal report used by the district and the AT had to get instructions on how to produce it to avoid a production cost from the payroll system provider - 30 minutes.

Raymond Pirrone SPR18/1285 Page 3 September 7, 2018 5. Production of reports and redaction of same to protect personal information unrelated to the taxpayers request and making copies of same - 20 minutes. 6. Compilation of costs and preparation of cover letter and communication of readiness ofrecords to Ms. Gardner 22 Aug 18 - 10 minutes. The Town's August 30th letter detailing the fee estimate of August 16t\ which assessed 2 hours of time, and 4 copies at 5 cents per page for a total of $48.20, is not in compliance with the Public Records Law and its access Regulations. The tasks enumerated under Numbers 1, 2, 3, 4 and 6 are not tasks permitted to assess fees for under the Public Records Law. The Town may not charge for receiving and reviewing the request, preparing an estimate and communicating with the requestor (Item 1). These tasks are part of the pre-existing day-to day duties of the Town. Further, the Town may not charge for receiving/reviewing Ms. Gardner's response to the Town's response to the request, or discussions with the Fire Department to determine how to use the payroll system or follow-up communications with the requestor (Item 2). These tasks are also part of the day-to-day duties of the Town, including education in using its own payroll system. The Town also assesses a cost for time to discuss with the Town Administrator the alternative means of producing the information; contact with the payroll system administrator, reviewing various report possibilities by the payroll system; and the Town Administrator's instructions on how to produce such a report. (Item 4). These cost cannot be passed onto the requestor under the Public Records Law. The Town assessed twenty minutes (20 minutes) for production of reports and redaction of same to protect personal information unrelated to Ms. Gardner's request, and making copies. (Item 5). While the Town can assess a fee for searching for the information, compilation of the information and producing the information (printing/copying), the Town cannot charge for segregation and redaction unless the segregation and redaction are required by law or a petition has been filed and approved by the Supervisor of Records. G. L. c. 66, § 10(d ); see also 950 C.M.R. 32.06(4). I note that the Town did not claim a statute under Exemption (a), or seek approval from the Supervisor to charge a fee for segregation and redaction of information in the record. Therefore, I find that the Town must revise its estimate. The Town assessed a compilation of costs and preparation of a cover letter and communication ofreadiness ofrecords to Ms. Gardner (Item 6). The Town may not assess a fee for adding up the costs of a public records request, preparing a fee estimate/cover letter and communicating with the requestor regarding the readiness of the records requested. The Town must revise its estimate regarding this cost. (Item 6) The Town's estimate did not include the hourly rate of the individual who conducted the search, compiled the information and printed the copies of the records. The Regulations provide that in cases where it is necessary to reproduce the requested records a records access officer may charge a fee to search for, compile, and reproduce a record requested based on the hourly

Raymond Pirrone SPR18/1285 Page4 September 7, 2018 rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, § lO(d); see also 950 C.M.R. 32.07(2). Additionally, the reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. Id. Based on the Town's August 30th fee estimate, I find that the Town has not explained with specificity why the estimated amount of time was required to search for, compile and produce responsive records. For the reasons discussed above, I find the Town must revise its fee estimate and provide Ms. Gardner with the revised fee estimate that complies with G. L. c. 66, § lO(d). Order Accordingly, the Town is ordered to provide Ms. Gardner with a revised fee estimate in a manner consistent with this order, the Public Records Law and its Regulations within ten (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. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Cynthia B. Gardner