Joseph Smeraldi v. Fitchburg, City of - Building & Zoning (SPR 20200496)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen•isor ofR ecords March 23, 2020 SPR20/0496 Mark Barbadoro Building Commissioner City of Fitchburg Building Department 166 Boulder Drive Fitchburg, MA 01420 Dear Mr. Barbadoro: I have received the petition of Joseph A. Smeraldi appealing the response of the City of Fitchburg (City) Building Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 28, 2020, Mr. Smeraldi requested: "1. From Jan. 1, 2019 to present, copies of all violations issued by the Office of the Building Commissioner and copies of all fines issue[ d] for each violation; and 2. For as far back as records are maintained, copies of all violations issued by the Office of Building Commissioner and copies of all fines issue[ d] for each violation for Zoning Ordinance 181.313 Principal Use sub section #7." In a March 5, 2020 fee estimate, the Department assessed a fee of $13.00 for Mr. Smeraldi's Request No. 1; and, $416.00 for Mr. Smeraldi's Request No. 2. As a result of the Department's estimate, Mr. Smeraldi appealed to the Supervisor of Records (Supervisor), and this appeal was opened. Fees -Municipalities 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, § 10( d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents 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

Mark Barbadoro SPR20/0496 Page 2 March 23, 2020 ($.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, § lO(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 how if such rate is approved by the Supervisor of Records 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 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 Department's March 5, 2020 fee estimate The Department's March 5th fee estimate states: "1. 5 minutes each for the clerk to find each of the records in the six inspectors files (d igital search on the computer only) for a total of 30 minutes at $26 an hour= $23; and 2. An exhaustive search of all ticket books in the city to search specifically for violations of zoning code section 181.313 and making copies totaling 16 hours of labor- $416." In an offer to modify Mr. Smeraldi's request to reduce the cost, the Department offered to allow Mr. Smeraldi to review the ticket books and find the responsive tickets that he would like copies of, and at no charge. To date, Mr. Smeraldi has not taken advantage of that suggestion or modified his Request No. 2. On March 10, 2020, Mr. Smeraldi agreed to pay a fee for Request No. 1; however, he is not willing to pay $416 for his Request No. 2. In a March 101 h email, the Department indicated that it is preparing the records responsive to Mr. Smeraldi's request Number 1. The Department's estimate indicates that the fee assessed is for search time for both Request No. 1 and No. 2; however, the Department did not explain whether the City is required to provide two (2) hours of search time for free in compliance with the Public Records Law. See G. L. c. 66, § 10( d)(iii). The Department must clarify this issue. The Department is assessing an hourly rate of $26.00 per hour, which is not in compliance with the Public Records Law, a fee of $25 .00 is the maximum hourly rate that a records custodian is allowed to charge search time, compilation time, segregation, redaction or reproduction to provide a requested record. A records custodian must use the lowest paid employee hourly rate for an employee who has the necessary skill required for the tasks

Mark Barbadoro SPR20/0496 Page 3 March 23, 2020 undertaken. Id. Municipalities may charge more than $25 per hour, but such rate must be approved by the Supervisor of Records under a petition under G. L. c. 66, § 10( d)(iv). To the best of my knowledge, the Department has not petitioned the Supervisor for approval of $26 per hour for this request. The Department, in its March 5th estimate, offered to allow Mr. Smeraldi to review all the City's ticket books, and allow Mr. Smeraldi to choose the tickets he would like copies of at no charge. To date, Mr. Smeraldi has not taken advantage of the Department's suggestion. Mr. Smeraldi and the Department are encouraged to communicate in order to produce records more efficiently and affordably. Mr. Smeraldi may wish to review the zoning code violations and choose which ones he wants copies of, as was suggested by the Department. Whereas, Mr. Smeraldi did not provide a timeframe for the records of zoning code violations, he may wish to provide the Department with a particular timeframe. See G. L. c. 66, § IO(b)(vii) (a municipality agency 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 Department is ordered to provide Mr. Smeraldi with a revised fee estimate, in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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. Sinc.er.ely, ~ - I .,{)A Jjjj Al II A . ~ Rebecca S. Murray Supervisor of Records cc: Joseph Smeraldi