Catherine Clairmont v. Edgartown, Town of - Town Clerk (SPR 20190072)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 28, 2019 SPR19/0072 James Hagerty Town Administrator Town of Edgartown P.O. Box 35 Edgartown, MA 02539 Dear Mr. Hagerty: I have received the petition of Catherine Clairmont appealing the response of the Town of Edgartown (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on December 21, 2018, Mr. Kager requested three categories ofrecords including "[a]ll correspondence to and from The Wastewater Commissioners, the Wastewater Department staff' and certain named individuals. The request also included "the table of contents of the WWC meeting binder of the March 16, 2018, February 15, 2018, September 2ot\ 2018, November st\ 2018, and December 20Th' 2018 WWC meetings" as well as "[a]udio recording of the February 15, 2018 Wastewater Commission meeting." On January 8, 2019, the Town responded to Ms. Clairmont and Mr. Kager with a response, including a fee estimate. Unsatisfied with the Town's fee estimate and response, Ms. Clairmont petitioned this office and SPR19/0072 was opened as a result. Fee - Municipalities 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, § lO(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, § 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, 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

James Hagerty SPR19/0072 Page 2 January 28, 2019 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). Further, 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 C.M.R. 32.06(4). The Town's January sth Response In the Town's January gth response to Mr. Kager and Ms. Clairmont, the Town included a fee estimate in its response. The Town indicated it "will likely spend a total of (3) hours searching and addressing your request" and "search time amounts to a cost of $75.00, which will begin upon successful receipt of payment." The Town also informs Mr. Kager and Ms. Clairmont that the records will be available and ready to picked up from the Town Hall in Edgartown. The Town also states "[t]he audio recording can also be emailed upon successful receipt of payment." Ms. Clairmont is appealing the Town's fee estimate and response for three reasons. The first reason is "[t]he RAO is requiring that we pick up paper records at his office rather than send them to us electronically as requested," that "[t]he fee estimate of $75.00 seems excessive given the limited scope of this request," and because the Town is "requiring us to pre-pay for these records." After reviewing the Town's January gth response, the response was insufficient to explain the basis of the three hours assessed for "searching and addressing" the request. Specifically, it is unclear what steps the Town is taking to prepare the files. The Town has also not demonstrated it is a municipality with a population of 20,000 or fewer in order to assess a fee for the first two hours of work performed. See 950 C.M.R. 37.07(2)(m)(2). Further, the Town has not indicated whether the hourly rate used is that of the lowest paid individual capable of performing these tasks. See G. L. c. 66, § 10(d )(iii). For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, §lO(d). It should be noted the Town can charge a reasonable fee before furnishing a copy of the requested records. See G. L. c. 66, § 10( d)(Every person having custody of any public record ... at reasonable times and without unreasonable delay ... shall furnish one copy thereof upon payment of a reasonable fee). Preferred format for records In her appeal, Ms. Clairmont indicates that her preferred format for the records is electronic. Although, the Town asserts that the requested records will be available for pickup (or in the case of the audio recording can also be emailed), please note that under the updated Public

James Hagerty SPR19/0072 Page 3 January 28, 2019 Records Law, "[t]he records access officer shall, to the extent feasible, provide the public record in the requestor's preferred format or, in the absence of a preferred format, in a searchable, machine readable format." See G. L. c. 66, § 6A(d). Order Accordingly, the Town is ordered to provide a revised fee estimate made in accordance with the Public Records Law, its Access Regulations and this order within ten business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Ms. Clairmont may appeal the substantive nature of the Town's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Catherine Clairmont Patrick Kager