Jude Ahern v. Wellfleet, Town of - Town Clerk (SPR 20181298)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 1 1,2018 SPR1811298 Joseph Powers, MMCICMMC Town of Wellfleet - Town clerk 300 Main Street Wellfleet, MA 02667 Dear Mr. Powers: I have received the petition of Jude Ahern appealing the response of the Town of Wellfleet (Town) to a request for public records. G. L. c. 66, fj 10A; see also 950 C.M.R. 32.08(1). Specifically, on February 23,2018, Jude Ahern requested "copies of the audio recordings made of the Wellfleet Charter Review Committee meetings from July 19,2016 through January 8,2018 ." Previous appeal This request was the subject of a previous appeal. See SPR181927 Determination of the Supervisor of Records (July 6,201 8). I closed SPR181927 after the Town dP rovided a supplemental response to Ms. Ahern on July 2,201 8. The Town's July 2" response provided a fee estimate. Unsatisfied with the Town's response, Ms. Ahern petitioned this office and this appeal, SPR1811298, was opened as a result. 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 10(d). The fees must a. 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 public record. G. L. c. 66, fj 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, fj 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, 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

Joseph Powers, MMCICMMC Page 2 September 1 l,201 8 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). 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). G. L. c. 66, 5 lO(d)(iii); 950 CMR 32.06(4). The Town's July 2ndr esponse In its July 2,2018 response, the Town indicates that on March 15,2018 , it provided a good faith estimate of $75.00 comprising of 3 hours of search time at a rate of $25.00 per hour. The Town further indicates that "[ulpon commencing the search for the recordings on the personal audio device, it became apparent that the time required for the search for the records . . . will take considerably more than 3 hours given the nature of the recording device at issue and the inability to automatically transfer data from the device to produce a copy of the files." As such, the Town assessed a fee of $733.50, based on 30 hours of search time at an hourly rate of $24.45. Fees to search for, compile, segregate, redact or reproduce a record request The Regulations provide that in cases where necessary to reproduce the requested records a records access officer may charge a fee to search for, compile, segregate, redact or reproduce a record requested based on the hourly rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, 5 lO(d); see also 950 C.M.R. 32.07(2). Additionally, Id. the reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. A municipality may not charge for segregation and redaction unless required by law or a petition has been filed and approved by the Supervisor of Records. G. L. c. 66, 5 10(d); see also 950 C.M.R. 32.06(4). The Town explains that the audio recorder contains approximately 28 total hours of data, including portions of the Charter Review Committee meetings, which has to be reviewed by its records access officer (RAO) to discern the portions that are responsive to Ms. Ahern's request. The Town also notes that because the audio recorder does not permit automatic transfer of data, the recordings have to be manually transferred to a separate recording device. The Town claims its RAO has already spent a day searching the device for recordings responsive to Ms. Ahern's request but claims that it requires additional 30 hours to continue the search. The Town also claims that upon receipt of payment, it anticipates that the records would be produced subject to withholding or redaction within twenty business days, "under any of the exemptions to the Public Records Law, other applicable provisions of law, andlor common law privileges, such as the attorney-client privilege. . . ." Based on the Town's response, it is unclear if the "[tlhirty (30) hours to continue for the search for potentially responsive records" includes segregation and redaction, as it indicated that "the records would be produced subject to withholding or redaction . . ." Please note that under

Joseph Powers, MMCICMMC Page 3 September 1 l,20 18 the updated Public Records Law, a fee may 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, fj lO(d)(iv). See G. L. c. 66, fj 10(d)(ii); 950 C.M.R. 32.06(4). I am not aware that the Town has submitted a petition under G. L. c. 66, fj lO(d)(iv). Accordingly, whereas the Town has not established that the redactions are required by law, the Town may not charge for redaction of the records. Further, with respect to the amount of time needed to comply with the request, I find the Town has not met its burden to show why it requires an additional 30 hours to produce responsive records. See G. L. c. 66, fj 10(d). Although the Town claims the recordings have to be transferred manually unto a separate device, because the audio device does not permit automatic transfer of data, it remains unclear why the Town requires 30 hours to compile responsive records when the audio device contains "approximately . . . 28 total hours of data . . ." and the RAO "has already spent one day searching the device for recordings responsive to the request." The Town must clarify this matter. In Ms. Ahern's petition for appeal, she claims that "[tlhese are Voice Memos that were recorded on [an identified Committee Clerk's] iPhone. Voice Memos are automatically saved individually and organized by date in one place. . . . All that is required is to download the iPhone Voice Memos to a computer and then transfer them through a service like Dropbox or Wetransfer or put them on CDs in their raw form. . . ." As such, I find that the Town must further clarify the nature of the "personal audio device." Lowest paid employee The Town indicates that based on the last Decennial U.S. Census it has less than 20,000 residents, consequently, Ms. Ahern will be charged for all the time associated with the request. The Town mentions that its RAO must review the data to discern the portions that are responsive. The Town also claims that the rate of the lowest paid employee capable of compiling the responsive records is $24.45. Based on the Town's response, it is unclear if the Town is using the hourly rate of its RAO, and if so, whether the RAO is the lowest paid employee capable of performing the task. Accordingly, the Town must clarify if the lowest paid employee rate has been assigned to the searching of these records. See G. L. c. 66, fj lO(d)(ii). In her petition for appeal, Ms. Ahern indicates that in order to move forward with this request, she proposes to shorten her list and begin with ten specific dates: September 20,2016; November 2,2016; November 28,2016; December 20,2016; January 3,2017; January 17,2017; June 24,2017; October 6,2017; October 13,2017; and December 8,2017. Ms. Ahern also states "[olr as another solution and if the transfer of these files is the problem, I propose that I come to Town Hall to listen to the recordings . . ." In light of these two proposals, it is uncertain if the Town can revise its fee estimate as it was based on Ms. Ahern's original February 23'd request. Accordingly, the Town and Ms. Ahern are encouraged to communicate further to enable the Town to provide the requested records. I understand a Public Records Division staff attorney

Joseph Powers, MMCICMMC Page 4 September 11 ,2018 contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Accordingly, the Town is ordered to provide Ms. Ahern 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 V Supervisor of Records cc: Jude Ahern