Colman Herman v. Cape Ann Transportation Authority (SPR 20191439)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 25, 2019 SPR19/1439 Felicia Webb Records Access Officer Cape Ann Transp01iation Authority 3 Pond Road Gloucester, MA 01930 Dear Ms. Webb: I have received the petition of Colman Herman appealing the response of the Cape Ann Transp01iation Authority (CATA) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on July 6, 2019, Mr. Herman requested expense records incurred by an identified individual, CATA's reimbursement policy, and a ce1iain contract within the possession of CATA . CATA responded on July 16, 2019, providing a fee estimate. Unsatisfied with CATA's response, Mr. Herman petitioned this office and this appeal 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, § 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 One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Felicia Webb SPR19/1439 Page 2 July 25, 2019 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06( 4)(g). CATA 's response In its July 16, 2019 response, CATA explains that it estimates it will "take seven hours of staff time at $25/hour to respond to the request for a cost of $125 (five hours at $25/hour). Payment is required prior to the request being processed." CATA concludes by informing Mr. Herman that it will provide information concerning any additional fees incurred as the result "producing black and white copies ($0.05 per copy) and the cost of mailing the hard copies using the least expensive form of mailing possible." Current appeal In his petition to this office, Mr. Herman notes three aspects of CATA's response with which he is not satisfied. They include: the number of hours estimated to respond to the request, the hourly rate used and CATA's assessment that it is classified as a municipality, rather than an agency, under the Public Records Law. It is unclear why seven hours is necessary to respond to this request. CATA must explain how much time is required to search for the requested records and how much time is required to segregate and redact. If segregation and redaction is necessary, CATA must explain whether the segregation and redaction is required by law. See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). Additionally, CATA must confirm whether the $25 an hour assessed is representative of the lowest paid employee who has the necessary skill to perform these tasks. Agency status In his appeal, Mr. Herman asserts that "CATA is an agency, not a municipality." The Public Records Law Access Regulations define a municipality as "[a] consortium, consolidation or combination of entities within a single political subdivision of the commonwealth or among multiple political subdivisions of the commonwealth ... " 950 C.M.R. 32.02. It is my understanding that CAT A offers transportation services to the municipalities of Cape Ann, including the City of Gloucester and the Town of Rockport. Given that CATA is a combination of entities among multiple political subdivisions of the commonwealth, it is my determination that for the purposes of the Public Records Law, CATA is a municipality rather than a state agency. See G. L. c. 161B, § 2 (in creating regional transit authorities, the Legislature asserts that "[t]he territory within and the inhabitants of each of the following groups of cities and towns may ... become a body politic and corporate and a political subdivision of the commonwealth under the name preceding each group.").

Felicia Webb SPR19/1439 Page 3 July 25, 2019 Conclusion Accordingly, CATA is ordered to provide Mr. Herman with a supplemental response to his request as outlined above, 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. Where applicable, this office encourages Mr. Herman and CATA to communicate to facilitate providing records more efficiently. See G. L. c. 66, §lO(b)(vii) (an 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 municipality to produce records sought more efficiently and affordably). Sincerely, ~u~ Supervisor of Records cc: Colman Herman