Jude Ahern v. Wellfleet, Town of - Town Clerk (SPR 20190145)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 5, 2019 SPR19/0145 Joseph Powers, MMC/CMMC Town of Wellfleet-Town clerk 300 Main Street Wellfleet, MA 02667 Dear Mr. Powers: I have received the petition of Jude Ahem appealing the response of the Town of Wellfleet (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, on February 23, 2018, Ms. Ahem requested "copies of the audio recordings made of the Wellfleet Charter Review Committee meetings from July 19, 2016 through January 8, 2018." Previous appeals This request was the subject of previous appeals. See SPRl 8/927 Determination of the Supervisor of Records (July 6, 2018); SPRl 8/1298 Determination of the Supervisor of Records (September 1, 2018); and SPR18/1443 Determination of the Supervisor of Records (October 10, 2018). In my October 10th determination, I ordered the Town to provide Ms. Ahem with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the October 1o th determination, the Town provided a response on October 22, 2018. Unsatisfied with the Town's response, Ms. Ahern petitioned this office and this appeal, SPR19/0145, 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, § 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, § 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 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, MMC/CMMC SPR19/0145 Page 2 February 5, 2019 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, 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). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). The Town's October 22nd response In its October 22, 2019 response, the Town clarifies that it "is not charging Ms. Ahem for any segregation or redaction time in its estimate to search for responsive records for Charter Review Committee recordings." Rather, the Town explains that it is charging reasonable fees associated with locating and identifying responsive records. The Town reiterates that it "is not seeking any payment associated with this request based on the organization and management of its records." The Town further indicates that in an effort to resolve this matter, it has revised its fee estimate and has "waived an additional 7 hours of search time." The Town continues to reiterate "that its fee estimate is necessary to search for all responsive recordings on the device .... [P]ursuant to 950 CMR 32.07(h), the Regulations further provide as follows: 'for copies of public records not susceptible to ordinary means of reproduction, the actual cost incurred in providing a copy may be assessed."' The Town explains that" ... the search for responsive records requires [it] to search the recordings on the recording device to locate and identify responsive records consistent with 950 CMR 32.02 and 32.07. The Town is not assessing any fee to Ms. Ahern to search for responsive records based on the management and organization of its records - it is assessing a fee to locate responsive records, as authorized." The Town claims that its estimate to search for records on an audio recording is "analogous to charging a requestor a reasonable fee for searching a filing cabinet for responsive hard copy records or searching a custodian's e-mail account for electronic records responsive to a public records request." The Town claims that in an effort to resolve this matter it has further reduced its good faith estimate to 21 hours and that such redaction "is being made only for the purpose of fully resolving this mater and limiting any further costs or administrative expense in responding to this request to a total of $525.00." This amount, the Town claims, is based on an hourly rate of $25.00 for the lowest paid employee capable of searching for the responsive records on the device. Although the Town clarifies that it is assessing a fee only to search for responsive recordings on the device and has further reduced its cost by 7 hours, from 28 hours to 21 hours of search time, it remains unclear what the content of the 21 hours of search time is. The Town in

Joseph Powers, MMC/CMMC SPR19/0145 Page 3 February 5, 2019 its September 25th response has indicated that because the device contains " ... Committee recordings [that] are intermingled with other non-Town business personal recordings, ... the estimate of time provided to Ms. Ahern is required to search for the responsive records contained on the device." See SPRl 8/1443. It should be noted that the Town is not permitted to charge Ms. Ahern for the time needed to separate Committee recordings from those that are "non-Town business personal recordings." The Town is advised that public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § lO(a); see also Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 289-90 (1979). In her appeal petition, Ms. Ahern includes "instructions for an Olympus Digital Voice corder" and indicates that "all recordings are named by date and can be filed in one of four folders, A-C and S, and 'Each recorded file is stored in a folder. Using folders to classify files make it convenient to find files you want to access later."' Ms. Ahern further indicates that she is "willing to immediately loan the [Town] the Instructions, CD and USB cord for the Olympus Voicecorder." As such, this this office encourages both parties to communicate to enable the Town to provide the requested records more efficiently and affordably. 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 Supervisor of Records cc: Jude Ahern