Amanda Beland v. Orange, Town of - Town Clerk (SPR 20200186)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 14, 2020 SPR20/0186 Nancy Blackmer, MMC/CMMC Town Clerk/Records Access Officer Town of Orange 6 Prospect Street Orange, MA 01364 Dear Ms. Blackmer: I have received the petition of Amanda Beland of WGBH News appealing the response of the Town of Orange (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on November 22, 2019, Ms. Beland requested" ... copies of every host community agreement approved for recreational marijuana businesses - dispensaries, cultivators etc ...." The Town responded on November 27, 2019, providing a fee estimate. Objecting to the fees, Ms. Beland petitioned this office and this appeal, SPR20/0186, was opened as a result. While this appeal was pending, the Town provided a supplemental response dated February 3, 2020. Fee estimates - municipalities 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, § lO(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) 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 less. 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 of Records under a petition under G. L. c. 66, § lO(d)(iv). 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

Nancy Blackmer, MMC/CMMC SPR20/0186 Page 2 February 14, 2020 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). The Town's November 27'" fee estimate In its November 27, 2019.fee estimate, the Town states that "[t]o receive copies of the HCA's, there will be a fee. At this time, [the Town] estimate[s] the cost to be approximately $25.00." The Town indicates that it would produce responsive records upon payment of the estimated fee. The Town's February 3rd supplemental response In its February 3, 2020 supplemental response, the Town explains that "[t]he records that were sent as part of the subpoena were sent as one large zip file and included more than just the Host Community Agreements. This zip file was created by our outside IT provider. In order to provide these, we will need to scan each HCA to fulfill the request. The other option, which would also require a fee, would be to get the zip file from our IT provider and then go through all the documents to find each HCA and then segregate and save it." The Town asserts that "[i]f a document does not exist in electronic format, [it] charge[s] a fee to provide this document for any request. This is the reason we have set a fee for providing the requested information." 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, § 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. Although the Town claims it has to access a fee to produce responsive records, it is unclear how the Town reached the estimate of $25. Specifically, it is uncertain whether the Town is assessing a fee for time to search for, compile, segregate, redact, or reproduce records. It is additionally uncertain from the Town's response, the amount of time it estimates it would take to produce responsive records. Based on the foregoing, I find the Town must revise its fee estimate or provide fu1iher explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10( d). Conclusion Accordingly, the Town is ordered to provide Ms. Beland with a response to the request, provided 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.

Nancy Blackmer, MMC/CMMC SPR20/0186 Page 3 February 14, 2020 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Amanda Beland