John M. Dupuis v. West Bridgewater Board of Selectmen (SPR 20192506)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth · Public Records Division Rebecca S. Murray Supervisor of Records January 2, 2020 SPR 19/2506 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 forpublic records. G. L. c. 66, § lOA; 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 Town provided a fee estimate on October 8, 2019, estimating that it would take approximately 8 hours to complete the request, for a cost of $191.12. Prior Appeal This request was the subject of a prior appeal. SPR 19/2201 Determination of the Supervisor of Records (November 14, 2019). In my November 14th determination, I ordered the Town to provide a supplemental response providing further information regarding its fee estimate for the cost of producing responsive records. The Town provided this response on December 2, 2019, explaining the basis for its estimate. Unsatisfied with this response Attorney Dupuis petitioned this office and this appeal, SPR 19/2506, 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, § 1O (b )(viii); 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 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 SPR19/2506 Page 2 January 2, 2020 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 (2) 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 fewer. G. L. c. 66, § lO(d)(iii). Where appropriate, municipalities may include as paii 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, § 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 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). Current Appeal In my November 14th determination, I found it remained unclear why the Town estimated that it would require 8 hours to produce responsive records. The Town provided fmiher information on this issue in a supplemental response dated December 2, 2019. The Town indicates that it has based its estimate on the time required to search the records of the Town Clerk and of the Board of Selectmen. The Town notes that "if the Town Clerk determines that she has all the requested documents in her files, your actual bill for hours will be only 1 - 1Y z hours." The Town provided further information regarding the process required to find documents filed with the records for the Board of Selectmen, noting that "Selectmen documents are filed by date, not by topic," and that responsive records are likely to be under the general heading "vote on warrant article," rather than a specific title. Lastly, the Town has additionally noted that some of the responsive documents are contained in records available online. Applicability of c. 41 & c. 82 In his appeal petition, Attorney Dupuis states that "[b]ecause of the outstanding question regarding the records under MGL c. 82 ss2 l-24, the good faith estimate is not accurate or proper." Attorney Dupuis fmiher claims that the "position taken by the West Bridgewater Board of Selectmen, and their unsupported legal opinion, is a matter that needs to be resolved in order to conduct a complete compliance analysis under the Records law." I find that interpretation of these statutes falls outside the scope of the Public Records Law. Accordingly, I decline to opine on the applicability of these statutes to the Town.

David Gagne SPR19/2506 Page 3 January 2, 2020 Conclusion Whereas the Town has provided a good faith estimate for the production of responsive records in its possession, I find it has satisfied its burden in replying to this request. See G.L. c. 66 § lO(b ). Accordingly, I will consider this administrative appeal closed. If Attorney Dupuis is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Comi of the Commonwealth. See G. L. c. 66, § lO(b) (pursuit of administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~u~ Supervisor of Records cc: John Dupuis, Esq.