Kevin P. Medeiros v. Dartmouth, Town of - Town Administrator (SPR 20191977)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen,isor ofR ecords October 4, 2019 SPR19/1977 Shawn Maclnnes Dartmouth Town Administrator 400 Slocum Road Dartmouth, MA 02 74 7 Dear Shawn Macinness: 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 to charge $73.07 per hour i,n responding to a request made by Kevin P. Medeiros. G. L..c. 66, § lO(c). As required by law, it is my understanding that the Town furnished a copy of this petition to the requestor. Id. In a letter dated September 23, 2019, Mr. Medeiros requested various categories of records "relating to any dumping and filling that may of occurred in the McCabe St and Bliss Corner area, for the time period between Jan 1, 1910 through December 31, 1972." Petition 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). 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 Maclnness SPR19/1977 Page 2 October 4, 2019 Petitions to Assess Fees 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). 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). 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 its petition the Town seeks "an extension of 30 business days of responding to Mr. Medeiros's request, in addition to the 25-business day default statutory maximum." The Town explajns, "[b]y way of background, the request seeks documents related to an extensive Massachusetts Department of Environmental Protection ('DEP') investigation into the potential disposal of solid waste over decades in a large area of the Town of Dartmouth. This specific records request deals with all potential records over more than 62 years." You further note, "[a]s a result of that scope, as well as the potential extensive segregation and redaction of those records, I currently estimate that I will spend at least 15 hours on this matter, while my administrative clerk will spend at least 30 hours on this matter. That volume of hours precludes the completion of any response to this records request within the default statutory timeframe without severely stressing the functionality and proper operation of the Select Board Department." With respect to the petition to charge $73.07 per hour in responding to a request made by Kevin P. Medeiros you state, "I hereby petition that I be permitted to charge for my search, segregation and redaction of these records at an hourly rate of $73. 07, being my salary equivalent hourly rate." You explain, "[a Js the Town Administrator, and given my extensive knowledge of the DEP investigation, I have the comprehensive knowledge of these matters that is necessary in order to determine both the responsiveness of these records to the records request

Shawn Maclnness SPR19/1977 Page 3 October 4, 2019 and which records would fall within the statutory exemptions." You add, "[p] lease note that a minority of the searching, as well as all compiling/copying of produced records, will be undertaken by my Administrative Clerk at the statutory maximum rate of $25 per hour." Conclusion I find that in light of the volume ofresponsive records the Town has established good cause to permit an extension of time. See G. L. c. 66, § lO(c)(i)-(iv). I hereby grant the Town an extension of 30 business days to furnish copies of records responsive to Mr. Medeiros's request See G. L. c. 66, § 10( c) . The Town is advised it must provide the records in a manner consistent with the Public Records Law and its Access Regulations. To the extent possible, the Town must provide responsive records on a rolling basis. With respect to the Town's petition to assess fees, I find the Town may assess a fee for the time spent to compile, segregate, and redact the requested records. However, it is unclear how the request could not be prudently completed without a fee in excess of $25 per hour; specifically it is unclear why this task cannot be completed by the administrative clerk. Mr. Medeiros's may seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ l'O(c), lOA(c). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Kevin P. Medeiros