Anne Horrigan v. Tewksbury Town Clerk (SPR 20201160)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 17, 2020 SPR20/1160 Denise Graffeo Town Clerk Town of Tewksbury 1009 Main Street Tewksbury, MA 01876 Dear Ms. Graffeo: I have received your petition on behalf of the Town of Tewksbury (Town) seeking to charge a fee in responding to a request made by Ann Horrigan of eMerges.com, Inc. G. L. c. 66, § 10(d)(iv). As required by law, a municipality must furnish a copy of their petition to the requestor. Id. It is my understanding that Ms. Horrigan was provided a copy of your petition in this matter. On July 13, 2020 Ms. Horrigan requested, “the electronic copy of the entire ‘town census resident extract’ list also sometimes called the ‘extract #2’ database.” Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality's petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). The second prong of the test is whether the fee represents an actual and good faith 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

Denise Graffeo SPR20/1160 Page 2 July 17, 2020 representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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, § 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 of Records 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Current Petition In your petition to this office dated July 13, 2020 you state, “I received the below request for an extract, which I determined is being used for commercial purposes. I respectfully request your permission to assess a fee.” The term “commercial purpose” as used in the Public Records Law is defined as: the sale or resale of any portion of the public record or the use of information from the public record to advance the requester's strategic business interests in a manner that the requester can reasonably expect to make a profit, and shall not include gathering or reporting news or gathering information to promote citizen oversight or further the

Denise Graffeo SPR20/1160 Page 3 July 17, 2020 understanding of the operation or activities of government or for academic, scientific, journalistic or public research or education. G. L. c. 66, § 10(d)(ix). In your petition you expressed, “[t]he fee will be $20 if permission is granted to charge. This is an annual request from this company.” Given the Town’s July 13th petition and the correspondence provided, it is my understanding that the requests made by eMerges.com, Inc. meet the statutory definition of “commercial purpose” within the Public Records Law. See G. L. c. 66, § l0(d)(ix). However, based on the Town's petition, it does not appear that the Town is seeking either to charge in excess of $25 an hour or for permission to assess a fee for the segregation or redaction of records. Please be advised, municipalities may not assess a fee for the first two 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, and the Supervisor has not been granted the authority to permit a municipality to charge for these first two hours. See G. L. c. 66, § 10(d)(iii). This office encourages Ms. Horrigan and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(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). Any updated fee estimate by the Town must be in compliance with this determination, the Public Records Law, and its Access Regulations. Sincerely, Rebecca S. Murray Supervisor of Records cc: Ann Horrigan