Justin Piccirillo v. Uxbridge, Town of - Town Clerk (SPR 20181979)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 21, 2018 SPR18/1979 Angeline Ellison Town Manager Town of Uxbridge 21 South Main Street Uxbridge, MA O1 569 Dear Ms. Ellison: I have received the petition of Justin Piccirillo appealing the response of the Town of Uxbridge (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Piccirillo requested a copy of all text or other electronic messages made to or from the phone of an identified individual from the dates of Feb. 5, 2018 to October 15, 2018. Previous appeal - SPRJ 8/1649 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. A fee estimate for the responsive records was the subject of a previous appeal. The Town's initial October 23, 2018 fee estimate sent by email at 10:55 am by the Town Clerk, Kelly Cote stating, "[i]t will take approximately 15 hours to process the texts at the maximum rate of $25 per hour. There is a software subscription to allow the printing and transposing of the texts at a cost of $40. The total cost of the request would be $415.00." After Mr. Piccirillo objected to the $40 fee to cover the cost of the software subscription that would be used by the Town to retrieve the text messages from the cell phone, on November 151, the Town eliminated the $40 cost from the October 23rd estimate. The Town's November 1st estimate was reduced to $375. Mr. Piccirillo petitioned the Supervisor of Records (Supervisor) regarding the $25 hourly rate and the 15 hours of time, as a result SPRl 8/1649 was opened. See SPR18/1649 Determination of the Supervisor (November 21, 2018). 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

Angeline Ellison SPR18/1979 Page2 December 21, 2018 In my November 21st determination of SPR18/1649, based on the Town's October 23rd initial estimate and November 1, 2018 revised estimate of $375 for 15 hours of time at $25 per hour for the Town Manager to search her phone and compile the text messages, I ordered the Town to revise its fee estimate or provide a further explanation of how the fee estimate is consistent with G. L. c. 66, § lO(d) (a municipality may access a reasonable fee for the production of a public record except those records that are freely available for public inspection). Basis of the current appeal - revised fee estimate On December 6, 2018 in response to my November 21st order, the Town opted to provide an explanation of its 15 hours of time at $25 per hour to search and compile the text messages for a total cost of $375. Employee time Municipalities may not access 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. See G. L. c. 66, § lO(d)(iii). The Town's December response indicates it will charge for the first two (2) hours of search and compilation, because its population, based on U.S. Census Data, the Town has 13, 569 residents, which is less than the 20,000. I find that the Town has supported its fee to charge the first two hours of time for search and compilation. 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. During a November 20th telephone conversation with a Public Records Division staff attorney, Ms. Cote explained that the Town assessed the maximum allowable hourly rate of $25 per hour, because the employee who will complete the tasks, the Town Manager, has an hourly rate in excess of $25 per hour. I find that the Town has supported its fee to charge $25 per hour to search for and compile the text messages. December response - 15 hours to search for and compile text messages Your December 6th response indicates: "[Mr. Piccirillo's] request covered approximately 9 months-worth of texts. I use my text daily and frequently; I estimated electronic communication with at least 4-5 persons per week; estimating at least 20 correspondences per month, totaling appropriately 180 records/text for the requested timeframe. Without additional technology, the texts sent and received must be opened and individually photographed by the phone through a "screenshot." The photo then must be emailed for either printing or digital compilation. This process was attempted and [took]

Angeline Ellison SPR18/1979 Page 3 December 21, 2018 approximately 1 minute per screenshot; each screenshot only captures what is visible and not all the text. Each record would have numerous screenshots to capture the correspondence. I estimate that it would take 45 hour[s] but the town only estimated attributed fifteen hours to fulfill the request." Given that the Town is allowed to use technology to search for and compile the text messages, the Town's December response still does not explain how it arrived at 15 hours of time to search the phone for nine months of text messages and to compile those messages. The Town has not explained why it will take 15 hours to extract the text messages even with the benefit of using the software to do so. The Town's only explanation for the fee is based on the steps to complete the tasks if the Town does not use the software, which the Town posits is 45 hours of time. You assert in your December response, "[t]e total hours to complete the request would be approximately 45 hour[ s] but the town only estimated fifteen hours to fulfill the request." If, as you explained that your phone may contain approximately 180 text messages based on your estimation that you average approximately 20 text messages per month, I find that is is unclear why 15 hours to complete the task of locating and compiling the responsive texts is necessary. I find that the Town has not met its burden of specificity in assessing its $375 fee estimate to provide the text messages to Mr. Piccirillo. Conclusion Accordingly, the Town is ordered to provide Mr. Piccirillo 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: Kelly J. Cote, CMC Justin Piccirillo