Rob Fasulo v. South Hadley, Town of - Town Clerk (SPR 20202235)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 2, 2020 SPR20/2235 Carlene Hamlin Town Clerk Town of South Hadley Town Hall 116 Main Street, Room 108 South Hadley, MA 01075 Dear Ms. Hamlin: I have received the petition of Rob Fasulo appealing the response of the Town of South Hadley (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Fasulo requested “an electronic copy of the most recent registered voter list for your municipality.” The Town responded on November 16, 2020, providing a fee estimate totaling $25 for the production of responsive records. Unsatisfied with the Town’s fee estimate, Mr. Fasulo petitioned this office and this appeal, SPR20/2235, was opened as a result. Fee Estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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

Carlene Hamlin SPR20/2235 Page 2 December 2, 2020 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 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). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Town’s Fee Estimate In its November 16th fee estimate, the Town estimates that it will require 1 hour to produce responsive records, for a total estimated cost of $25. Fees to search for, compile, segregate, redact or reproduce a record request The Regulations provide that in cases where it is necessary to reproduce the requested records, a records access officer (RAO) may charge a fee to search for, compile, segregate, redact or reproduce a record requested based on the hourly rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, § 10(d); see also 950 C.M.R. 32.07(2). ----- Additionally, the reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. Id. In its November 16th email, the Town states that “the estimate for researching, assembling and preparing this request is 1 hours.” In a November 20th email, you futher explained that “Due to the pandemic and limited staffing hours I as Town Clerk will be responsible for compiling the information requested. This information will be requested through the state's VRIS system.” The Town additionally explained “Once received, this file of over 8,000 voters will need to be reviewed and sorted. Because the state's system displays some information that is not public information such as voter ID there will be time spent in redaction to maintain the sanctity of South Hadley voters.” Although the Town indicates that it intends to redact information from the records, it is uncertain how redaction is required by law in this matter. Specifically, it is not clear which statutes, if any, require redaction. Please note that under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). I am not aware that the Town has submitted a petition under G. L. c. 66, § 10(d)(iv). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. See 950 C.M.R. 32.06(4)(g). Therefore, the Town must clarify what information contained in the records must be redacted, and what statute requires this redaction. Further, I find the Town has not met its burden to show that it requires 1 hour to complete this request. Although the Town indicates that after it requests the information from the VRIS

Carlene Hamlin SPR20/2235 Page 3 December 2, 2020 system, the file must be “reviewed and sorted,” it is unclear what this entails. The Town must provide additional information explaining how it arrived at its estimate of 1 hour to produce the requested record. Conclusion Accordingly, the Town is ordered to provide Mr. Fasulo 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Rob Fasulo