Alynn Woischke v. Paxton, Town of - (SPR 20191837)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

September 11, 2019 SPR19/1837

Laurie Becker

Town Clerk

697 Pleasant Street

Paxton, MA 01612

Dear Laurie Becker:

I have received your petition on behalf of the Town of Paxton (Town) requesting permission to charge $25.00 per hour for the provision of records. G. L. c. 66, § 10(c), (d)(iv). As required by law, the Town furnished a copy of their petition to the requestor, Id. In this matter, on August 26, 2019 Allyn Woischke requested “an electronic copy of the Paxton voter registration data.”

Petitions to assess fees

The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66,

§ 10(d)(iv).

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, § 10(d)(iv).

The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality's petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). The second prong of the test is whether the fee represents an actual and good faith representation by the municipality 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 redaction or segregation or fee in excess of $25 per hour; 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.

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

Laurie Becker SPR19/1837 Page 2 September 11, 2019

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 segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iti); 950 C.M.LR. 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).

Current Petition

In your petition to this office dated September 9, 2019 you state, “I would like to request permission to charge $25.00 per hour for a public records request made by Alloy of the Town of Paxton.” You further note, “I do have someone, Tiffany Sidhom, who works in my office who gets paid $18.00 per hour. However, she is not a titled Assistant Town Clerk and has very limited knowledge of VRIS. I would need to train her and she is currently unable to pull these reports without assistance.”

Conclusion

I decline to opine on the Town’s petition to charge $25.00 per hour for the provision of records as it appears the Town is not requesting permission to charge in excess of $25.00 per hour.

Please be advised, 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. See G. L. c. 66, § 10(d)(iti).

Laurie Becker SPR19/1837 Page 3 September 11, 2019

Further, this office encourages Allyn Woischke and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(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 municipality to produce records sought more efficiently and affordably). Any 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, § 10(d)(iv)(4), 10A(c), :

Sincerely,

Rebecca S. 20 Mucus

Supervisor of Records

ce: Allyn Woischke