Steven Ballard v. Boxborough, Town of - Town Clerk (SPR 20192367)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 9, 2019 SPR 19/2367 Ryan Ferrara Town Administrator Town of Boxborough 29 Middle Road Boxborough, MA O1 7 19 Dear Mr. Ferrar: I have received the petition of Attorney Steven Ballard appealing the response of the Town of Boxborough (Town) to a request for public records. G. L. c. 66, § IOA; see also 950 . C.M.R. 32.08(1). Specifically, Attorney Ballard requested copies of all drafts of the "Draft Policy on Membership and Activities on Town Boards," and all communications regarding this policy "between and among, or including but not limited to, as recipient or sender, any member of the Policy Advisory Committee, the Boxborough Select Board, or any paid staff of the Town of Boxborough." · The Town responded to Attorney Ballard with a fee estimate on November 21, 2019,. estimating that it would take 6 hours to complete the request. Unsatisfied with this response Attorney Ballard petitioned this office and this appeal, SPR 19/2367, 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, § lO(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, § IO(d). The fees must reflect the actual cost of complying with a paiiicular 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 (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

Ryan Ferrara SPR19/2367 Page 2 December 9, 2019 municipality has 20,000 people or fewer. G. L. c. 66, § IO(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, § lO(d)(iv). G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). The Town's Fee Estimate In its November 21st response, the Town estimated that it will require 6 hours of work to find and produce the requested records. The Town estimated that it would require 1 hour to search for responsive emails, 4 hours for the Department Assistant to "review and prepare responsive records" and 1 hour for the Town Clerk to "review and prepare responsive records." The Town estimated a total fee of $150 to respond to the request. In his appeal petition, Attorney Ballard challenges the Town's estimate, arguing that "[o ] ther than the emails, the specific documents requested are drafts of a policy proposal, most or all of which should be 'documents or exhibits used in a public meeting' under the Open Meeting Law ... [a]s such, they are public records that should be very easy to identify and produce immediately." Attorney Ballard further contends that "[a]ccording to the Regulations, the RAO has forfeited the right to assess any fee." The Public Records Law provides that in cases where necessary to reproduce the requested records a records acces$ 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, § lO(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. Based on the Town's responses and Attorney Ballard's petition, it is unclear why 6 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 6 hours to complete the request. Specifically, the Town must clarify to what tasks it refers in its estimate by the phrase "review and prepare responsive documents." Further, it is unclear whether the Town has complied with the requirements of M.G.L. c. 66, §lO(b) and may charge a fee to respond to this request. See 950 C.M.R. 32.07(2)(c) (a records access officer shall not charge a fee for the provision of a public record unless the records access officer responded to the requester within ten business days under G. L. c. 66, §lO(b)). The Town must clarify this matter.

Ryan Ferrara SPR19/2367 Page 3 December 9, 2019 Conclusion Accordingly, the town is ordered to provide Attorney Ballard 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. Sincerely, ~ r r ~ Supervisor of Records cc: Steven Ballard, Esq.