Collin Dias v. Fall River, City of - Office of the City Clerk (SPR 20201465)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 4, 2020 SPR20/1465 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 appeals This request was the subject of previous appeals. See SPR20/1151 Determination of the Supervisor of Records (July 15, 2020) and SPR20/1186 Determination of the Supervisor of Records (July 29, 2020). In my July 29th determination I directed the City to 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 and to clarify its fee estimate. The City responded on July 31, 2020, providing additional information regarding its fee estimate. Unsatisfied with the City’s response, Mr. Dias petitioned this office and this appeal, SPR20/1465, 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 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 SPR20/1465 Page 2 September 4, 2020 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, § 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 31st response Compliance with G. L. c. 66, § 10(e) In my July 29th determination, I directed the City to demonstrate whether it provided a response under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. In its July 31, 2020 response, the City explains that “[t]his request came at an extremely busy time of the year for this department as it is responsible for accommodating all City Departments including the School Department. This is a time when departments are trying to close the current fiscal year budgets and prepare for the new fiscal year simultaneously both tasks involve the purchasing department at length. The purchasing department is currently staffed with one (1) full-time clerk and a part-time Purchasing Agent. The Purchasing Agent has only been in her position since March 2020.” The City also states that “[t]he nature of this request entailed research into the archives where older records are stored in addition to the more recent that are still in the main office. RFPs are mixed in with all other bids for their respective fiscal years requiring extraction of the specific Public Records Request documents. Files are all in hard copy format. . . . The oversight of the timeliness of a response with a fee estimate to Mr. Dias’ Public Records Request was not intentional. . . . The City is acknowledging the lack of timely response per G.L.c.66, §10(b). Under the current social, fiscal, and civic circumstances the City would respectfully request reprieve of the request of Mr. Dias’ request under G. L. c.66, §10(d).” Clarification of estimate The City explains that there was a clerical error in the “‘Anticipated number of pages to be copied.’ The anticipated number of pages to be copied is: 6,676 (not 2,021). It is reflected that a fee was not assessed for the first two (2) hours of the clerk’s time. The rate provided is the hourly rate of the one (1) full-time clerk on staff for the purchasing department. This clerk is the

Allison Bouchard SPR20/1465 Page 3 September 4, 2020 only clerk as well as the most historically knowledgeable of department records to fulfill the tasks associated with this public records request.” The City further explains that the “‘Research Time’ is characterized to include the clerk’s time to filter through the documented lists of all solicitations for the time period indicated, sort and compile the associated information necessary to extract the actual files/documents from storage (located within the building) to fulfill the public records request at hand. No copying has been initiated to date. The time to date is specifically the clerk’s accountable time to collect all necessary documents to fulfill the public records request should it pursue to the next step (providing hard copies of all documents).” The City indicates that “[b]ased on the volume of records that have been extracted for the purpose of this public records request the estimated amount of hours to fulfill the task hold true. Sorting and packaging involves providing the requester with a professional level of copies of the records requested. It is intended to present the records requested in a similar format to the original records on file. Providing proper labelling of each RFP and keeping the associated records neat, organized and easily identifiable.” As such, the City clarifies its fee estimate as follows: 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 6,676 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 Although the City explains that the demands of its purchasing department during the time the request was submitted affected its obligation to respond within ten business days, I find the City cannot assess a fee in accordance with G. L. c. 66, § 10(e) in this instance. Per the Public Records Law, “[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).” Id. 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 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.

Allison Bouchard SPR20/1465 Page 4 September 4, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Collin Dias