James W. Marsh v. Dartmouth, Town of - Town Administrator (SPR 20191207)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 24, 2019 SPR19/1207 Shawn Maclnnes Dartmouth Town Administrator 400 Slocum Road Dartmouth, MA 02747 Dear Shawn Maclnnes: I have received your petition on behalf of the Town of Dartmouth (Town) seeking an extension of time to furnish copies of a requested record, or any portion thereof, as well as requesting permission to charge for time spent segregating or redacting responsive records under G. L. 66, § 10 (d)(iv). As required by law, the Town furnished a copy of this petition to the requestor G. L. c. 66, § 10(c ). Petition to Assess Fees 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 (Supervisor) under a petition under G. L. c. 66, § 10 ( d)(iv). See G. L. c. 66, § 10(d )(iii); 950 C.M.R. 32.06(4). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the,records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § lO(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve an agency's petition to allow the agency to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § lO(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the agency to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without 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

Shawn Macinnes SPR19/1207 Page 2 June 24, 2019 redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. 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. 950 C.M.R. 32.06(4)(g). 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, § 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, 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). Petitions for an extension of time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § lO(c).

Shawn Macinnes SPR19/1207 Page 3 June 24, 2019 The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requester within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). 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, § IO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). Current Petition The Town is requesting "modifications of the default statutory and regulatory timeframe and hourly rate obligations with respect to a recently received public records request." The Town explains that the request seeks "all documents that the Town has produced and submitted to the Massachusetts Department of Environmental Protection in response to a Request for Information from that agency." The Town further notes that the request seeks "records from ... additional departments within the Town of Dartmouth," and as such, the petition is submitted on behalf of each of those departments as well as the Town. Fee Petition In its petition, the Town requests that "each Records Access Officer of the Town be permitted to charge for his or her respective segregation and redaction of the requested records at an hourly rate of $42.65." The Town explains that "the volume, history and breadth ofrecords that have been sought potentially implicate various exemptions under the Public Records Law, including with respect to possible private and privileged information." In light of the requested records and necessary review, the Town is permitted to charge an hourly rate of $42.65. Time Petition The Town, in its petition, requested "an extension of 30 business days for responding to Attorney Marsh's [r]equest, in addition to the 25-business day default statutory maximum." The Town explains that "production of the documents would therefore be due by August 20, 2019." The Town explains that the "various Town departments reviewed and complied a large quantity of documents for MassDEP that stretch back to the early 1900s." The Town further explains "that the Town has submitted documents to MassDEP pursuant to its obligations under Chapter 21E does not inherently mean that the same documents are not subject to segregation or redaction prior to public release. The need to conduct this segregation review also precludes immediate release of the documents that have already been submitted to MassDEP. It is not an exaggeration to state that the scope of the Town's obligations in response to MassDEP's Request for Information have stretched the personnel resources of many Town departments to the

Shawn Maclnnes SPR19/1207 Page 4 June 24, 2019 breaking point, consisting of many hundreds of man-hours over a period of months and including the locating and organizing of numerous archived file boxes in storage." I find that given the need to segregate and redact the records, the scope of the records requested, and the capacity of the Town in fulfilling the request, the Town has established good cause to permit an extension of time of 30 business days. G. L. c. 66 § 10( c )(i)-(iv). Conclusion For the reasons discussed above, the Town is granted an extension of 30 business days to produce responsive records as well as permitted to assess fees at an hourly rate of $42.65. This office encourages Attorney Marsh and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § lO(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Any updated fee estimate by the Town must be in compliance with this determination, the Public Records Law, and its Access Regulations. Please note the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G.L. c. 66, § 1O A. Sincerely, Rebecca S. Murray Supervisor of Records cc: Attorney James Marsh