Steven Ballard v. Boxborough, Town of - Town Clerk (SPR 20200065)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S, Murray Supervisor of Records January 28, 2020 SPR20/0065 Ryan Ferrara Town Administrator Town of Boxborough 29 Middle Road Boxborough, MA O1 719 Dear Mr. Ferrara: 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, § 1O A; 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." Previous appeal This request was the subject of a previous appeal. See SPRl 9/2367 Supervisor of Records Determination (December 9, 2019). In my December 9111 determination I ordered the Town to provide Attorney Ballard a response in a manner consistent with the order, the Public Records Law, and its Regulations. The Town provided a response to Attorney Ballard on December 17, 2019. Attorney Ballard appealed and SPR20/0065 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); 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 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 SPR20/0065 Page2 January 28, 2020 reflect the actual cost of complying with a pa1iicular 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 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, § 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, § lO(d)(iv). G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). Current appeal In a November 21, 2019 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 my December 9th determination I found the Town must provide more detail as to how it arrived at the estimate of 6 hours to complete the request. Specifically, I indicated the Town must clarify what tasks it refers in its estimate by the phrase "review and prepare responsive documents." I also noted it was unclear whether the Town complied with the requirements of 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's December 17111 response In its December 17th response the Town provided copies of drafts of the "Policy on Membership and Activities of Appointed Boards." The Town also indicates that it" ... provided the good faith estimate within ten business days after receipt of the request in accordance with G.L. c. 66, §lO(b). Specifically, the Town received the request on November 6, 2019 and provided the good faith estimate on November 21, 2019, within the statutory response period given the Veterans Day legal holiday in which Town offices were closed."

Ryan Ferrara SPR20/0065 Page 3 January 28, 2020 With respect to the Town's explanation of its fee estimate, you asse1i " ... the Town has already incurred significant cost to respond to the request, which costs were not even included as paii of the Town's good faith estimate. Specifically, the Town has already paid for two hours of work at $250 per hour, totaling $500 from its former IT vendor to conduct a comprehensive search its e-mail archive based on the nature of the request. The hourly rate provided in the Town's estirnate was for our current vendor which we anticipate will be billing us for their initial email search as well." You explain that "[d]espite such charges, the Town is only charging Mr. Ballard for one hour of the IT time to conduct the necessary searches at $25/hour in accordance with the law." The Town explains the "Estimated number of identified emails" is 466 and estimates 30 seconds per email to "locate responsive records." The Town estimates it will require 3.9 hours "of work for Department Assistant review.to locate responsive records." You further note that "[b] ased on the number of potentially responsive e-mails, for which the Town Clerk will also be locating e-mails responsive to the request in coordination with the Department Assistant, we anticipate conservatively that this effmi will take one hour of the Town Clerk's time." The Town contends "[i]n sum, the. $150 estimate is extremely conservative, done in good faith and only covers a portion of what the Town anticipates its actual costs will be to provide the requested e mails and the remaining Town documents are provided herein at no charge." In an email to this office dated January 28, 2020, Attorney Janelle Austin of KP Law, P. C., indicates on behalf of the Town that "[t]he Town has previously informed Mr. Ballard that is only charging for the time to locate the responsive e-mails at issue, and is not charging for any redaction time." (emphasis in original). In his appeal petition, Attorney Ballard challenges the Town's estimate, arguing, in part, the Town" ... is attempting to justify charging for work that is not specifically authorized by the Public Records Law." Despite its responses, I find it remains unclear why the Town must spend 30 seconds per email to "locate responsive records" in addition to the time already spent by the IT vendor to search the email archive. It is also unce1iain why an additional hour is needed for "locating e .mails responsive to the request in coordination with the Depaiiment Assistant." The Town must address these issues. Modification oft he scope oft he request In its December 1 t 11 response the Town indicates "[l]astly, as previously offered, the Town will certainly continue to work with you to clarify or modify the scope of your request, such as limiting the timeframe fmiher or fmiher limiting' the e-mail custodians. If you wish to do so, the Town may be able to more efficiently and expeditiously respond to your request. The Town will provide a revised estimate, as appropriate, should you narrow or clarify your request."

Ryan Ferrara SPR20/0065 Page 4 January 28, 2020 Attorney Ballard and the Town are encouraged to communicate in order to facilitate producing records efficiently and affordably. Attorney Ballard may wish to narrow his request to include shorter time periods or specific topics. G. L. c. 66, § lO(a)(i). The Town must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § lO(a)(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). 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 IO 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, Rebecca S. Murtay Supervisor of Records cc: Steven Ballard, Esq.