Collin Dias v. Fall River, City of - Office of the City Clerk (SPR 20201186)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 29, 2020 SPR20/1186 Allison M. Bouchard City of Fall River Office of the City Clerk One Government Center Fall River, MA 02722 Dear Ms. Bouchard: I have received the petition of Collin Dias appealing the response of the City of Fall River (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 23, 2020, Mr. Dias requested the following records regarding Requests for Proposals (RFPs) within the possession of the City: 1. All accepted Request for Proposals (RFP’s) from January 2016 until October of 2019. 2. All rejected Request for Proposals (RFP’s) from January of 2016 until October of 2019. Previous appeal This request was the subject of a previous appeal. See SPR20/1151 Determination of the Supervisor of Records (July 15, 2020). SPR20/1151 was closed after Mr. Dias notified this office of his wish to withdraw the administrative appeal. On July 14, 2020, the City responded to Mr. Dias’ request providing a fee estimate. Objecting to the timeliness of the fee estimate, Mr. Dias petitioned this office and this appeal, SPR20/1186, was opened as a result. Fee estimate – 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, § 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). 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

Allison Bouchard SPR20/1186 Page 2 July 29, 2020 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, § 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). The City’s July 14th estimate On July 14, 2020, the City provided the following fee estimate: Total research time to date: 7 hours Total research cost to date: 5 x 21.2260 = $106.13 (no fee for first two hours) Anticipated # of pages to be copied: 2,021 Estimated copying fee: 6,676 X .05 = $333.80 Estimated clerical fee: 7 hours x 21.2260 = $148.58 (copying/sorting/packaging) Estimated postage fee: 0 (anticipate pick up by requester) Total estimated cost . . . = $588.51 G. L. c. 66, § 10(e) In his appeal petition Mr. Dais states the following: “[t]he fee estimate I received for the RFP’s will not take seven hours to complete. I believe I was given an inaccurate fee estimate. . . . I ask this office to order the City of Fall River to provide me records free of charge as the fee estimate was not shown to me within 10 business days.” G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Mr. Dias submitted a public records request on June 23rd and the City provided a response on July 14th, I find it is unclear whether the City complied with G. L. c. 66, § 10(e). Specifically, the City must demonstrate whether it provided a response to Mr. Dias’ request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. Reasonableness of fee estimate In the event that the City can demonstrate that it complied with G. L. c. 66, § 10(e), it is necessary to analyze the reasonableness of the fee estimate.

Allison Bouchard SPR20/1186 Page 3 July 29, 2020 In the City’s fee estimate, it states “[t]otal research time to date: 7 hours. Total research cost to date: 5 x 21.2260 = $106.13. . .” However, it is unclear how the City may assess a fee for “research time” under G. L. c. 66, § 10(d)(ii). Particularly, it is uncertain how this task constitutes time to search for, compile, segregate, redact, or reproduce records. Consequently, I find the City must explain how this research fee complies with the provision of G. L. c. 66, § 10(d)(ii). The City further indicates that it is assessing an “[e]stimated clerical fee: 7 hours x 21.2260 = $148.58 (copying/sorting/packaging).” However, it is unclear why the City requires 7 hours to complete these tasks. The City must provide additional information explaining why the estimated amount of time is required and what these tasks; especially “sorting” and “packaging” entail. Also the City’s estimate does not make clear how many hours are being allocated to copying, sorting, and packaging of the records. The City must clarify this estimate. Additionally, the City indicates “[a]nticipated # of pages to be copied: 2,021.” However, the City also states “[e]stimated copying fee: 6,676 X .05 = $333.80.” Where the City indicates that it anticipates to make copies of 2,021 pages, it is unclear why the City is assessing a fee for 6,676 pages. The City must clarify this issue. Conclusion Accordingly, the City is ordered to provide Mr. Dias with a response to the request, provided 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Collin Dias