John F. Weingold v. Monterey, Town of - Town Clerk (SPR 20201131)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 22, 2020 SPR20/1131 Terry Walker Town Clerk 435 Main Road P.O. Box 308 Monterey, MA 01245 Dear Terry Walker: I have received the petition of Attorney John F. Weingold appealing the response of the Town of Monterey (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 24, 2020, Attorney Weingold requested 11 categories of records concerning the Town and its employees. On July 1, 2020, the Town provided Attorney Weingold a fee estimate. Unsatisfied by this response, Attorney Weingold petitioned this office and as a result SPR20/1131 was opened. Fee Estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(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 ($.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 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

Terry Walker SPR20/1131 Page 2 July 22, 2020 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, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Town’s July 1, 2020 fee estimate In its July 1st fee estimate, the Town states the project is to “take about 5 hours of research at $27.57/hour (the lowest paid employee in that department’s hourly rate) totaling $137.85.” However, it remains unclear if the Town submitted a petition to charge fees in excess of $25 per hour. G. L. c. 66, § 10(d)(iv). Based on the Town’s July 1st fee estimate, I find the Town has not met its burden of specificity in assessing the number of hours and explaining why the estimated amount of time is required to produce the records. It remains unclear how many hours were allocated to search for, compile, segregate, redact or reproduce the responsive records. Therefore, the Town must provide more detail regarding the tasks and the amount of time for each task undertaken. Conclusion Accordingly, the Town is ordered to provide Attorney Weingold with a revised fee estimate for the request, 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, Rebecca S. Murray Supervisor of Records cc: John F. Weingold, Esq. Melissa Noe