John M. Dupuis v. West Bridgewater Board of Selectmen (SPR 20192201)

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

Rebecca S, Murray Supervisor of Records

November 14, 2019 SPR 19/2201

David L, Gagne

Town Administrator

Town of West Bridgewater 65 North Main Street

West Bridgewater, MA 02379

Dear Mr. Gagne:

I have received the petition of Attorney John Dupuis appealing the response of the Town of Bridgewater (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Dupuis requested certain records of the Board of Selectmen pertaining to six identified roads in the Town.

The District responded to Attorney Dupuis with a fee estimate on October 3, 2019, estimating that it would take 20 hours to complete the request, for an estimated cost of $487.80. Attorney Dupuis subsequently revised his request to seek fewer documents, and the Town. provided a revised estimate on October 8, 2019, estimating that it would take 8 hours to complete the revised request. Unsatisfied with this response Attorney Dupuis petitioned this office and this appeal, SPR 19/2201, was opened as a result.

Fee Estimates

If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records,

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)().

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

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

David Gagne SPR19/2201 Page 2 November 14, 2019

municipality has 20,000 people or fewer. 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 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4).

The District’s Fee Estimate

In its October 8" response, the Town estimated that it will require 8 hours of work to find and produce the requested records. In his appeal petition, Attorney Dupuis challenged the Town’s estimate, arguing that “[a] fair and good faith estimate in this matter should be no more than 1 hour at a cost of $23.89.” Attorney Dupuis further explained that in his view, “each of the _ records identified for production are required by Massachusetts’ statute for converting a private street to a public way, G.L. c.82, §§21-24. They are required to be maintained by the BOS, and the Town Clerk....”.

The Public Records Law provides that in cases where necessary to reproduce the requested records a records access officer may charge a fee to search for, compile, segregate, redact or reproduce a requested record based on the hourly rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, § 10(d); see also 950 C.M.R. 32,07(2). The reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. Id,

In the Town’s October 3, 2019 response, it states that “Meeting Minutes and packets for Bresciani Lane, Woodrow Lane and Pearl Road are all on the Town’s website on the Board of Selectmen page.” It is unclear whether these documents are responsive to Attorney Dupuis’ request, and whether the Town is including in its estimate search time for documents related to

these roads.

Based on the Town’s responses, it is unclear why 8 hours will be needed to produce the responsive records. I find the Town must provide more detail as to how it arrived at the estimate of 8 hours. The Town should clarify what tasks it will undertake, and the amount of time devoted to each task. Additionally, the estimate is unclear as to which Town employees will perform this work. The Town therefore must clarify this estimate.

In light of Attorney Dupuis’ petition, it is further uncertain whether the Town is required to file copies of the responsive documents with the Town Clerk, pursuant to G. L. c. 82, $3 21- 24, In a telephone conversation with a staff member of the Public Records Division, the Town stated its position that it is not obligated to follow G. L. c. 82, §§ 21-24. The Town must provide further explanation regarding this matter.

David Gagne SPR19/2201 Page 3 November 14, 2019

Conclusion Accordingly, the Town is ordered to provide Attorney Dupuis a response in a manner

consistent with this order, the Public Records Law, and its Regulations within ten (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. Kebecea S. Murray

Supervisor of Records

Dhocon

cc: John Dupuis, Esq.