Thomas Coulombe v. Ware, Town of - Town Manager (SPR 20190562)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 1, 2019 SPR19/0562 Stuart Beckley Town of Ware Town Manager 126 Main Street Ware, MA 01082 Dear Mr. Beckley: I have received the petition of Chief Thomas Coulombe appealing the fee estimate of the Town of Ware (Town) to a request for fublic records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, on February 2i1, Chief Coulombe requested "any emails, text messages, letters, memos, meeting minutes and any and all correspondence referencing [him], referring to [him] as 'the Chief for example) or specifically naming [him]" between named individuals and members of the Board of Selectmen. On March 14t\ the Town responded to Chief Coulombe's request with a fee estimate. Unsatisfied with this response, Chief Coulombe petitioned this office, and this appeal, SPRl 9/0562 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 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). 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, § lO(d)(iv). 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

Stuart Beckley SPR19/0562 Page 2 April 1, 2019 A fee shall not be assessed for time spent segregating or redacting records unless such a segregation or redaction is required by law or approved by the Supervisor of Records under petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). Appeal The Town estimates it will take a minimum of 15 hours to search for and segregate the responsive records. This task would be completed by the Board of Selectmen' s Executive Assistant, the lowest paid employee capable of performing the task, at a rate of $16.00 per hour. In total, the estimate fee is $240.00. G. L. c. 66, § IO(e) In his appeal petition Chief Coulombe questioned the Town's ability to assess the fee under G. L. c. 66, § lO(e). Specifically, he asserted that the Town's" ... failure to reply within the requisite 10 days nullifies their ability to charge [him] at all." G. L. c. 66 § lO(e) provides that "[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b) ." I find the Town must clarify whether it complied with G. L. c. 66 § lO(e); specifically, it must demonstrate whether it provided a response to Chief Coulombe under G. L. c. 66 § 1O (b) within 10 business days of receipt of the request. See G. L. c. 66 § lO(b)(i)-(ix) (outlining the requirements of a records custodian's written response to a requestor). Reasonableness off ee estimate; segregation and redaction time In the event that the Town can demonstrate that it complied with G. L. c. 66 § 10(e ), it is necessary to analyze the reasonableness of the fee estimate. The Town's March 14th response indicates that "the search and segregation of documents responsive to [ Chief Coulombe' s] request will take a minimum of fifteen (15) hours." I understand the Town provided a supplemental email response on March 19th. However, despite its prior responses, I find the Town must explain why 15 hours will be needed to produce the records; specifically, it must describe how much time will be needed to search for the records and how much time will be needed to segregate and/or redact. Further, whereas it does not appear the Town submitted a petition to assess fees for the time to segregate/redact, the Town must explain whether the redactions are required by law. See G. L. c. 66, § lO(d)(iii) (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)); 950 C.M.R. 32.06(4)(g). Please note that 950 C.M.R. 32.06(4 )(g) provides that "petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records."

Stuart Beckley SPR19/0562 Page 3 April 1, 2019 Further, the Town must confirm whether it is within a municipality that has 20,000 people or less. See id. (municipalities may not assess a fee for the first two 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). Conclusion Accordingly, the Town is ordered to provide Chief Coulombe a response in a manner consistent with the Public Records Law, its Regulations, and this order within 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: Chief Thomas Coulombe