Matthew Rocheleau v. Attleboro, City of - City Solicitor (SPR 20202248)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 3, 2020 SPR20/2248 Stephen K. Withers City Clerk City of Attleboro 77 Park Street Attleboro, MA 02703 Dear Mr. Withers: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the fee estimate response of the City of Attleboro (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 6, 2020, Mr. Rocheleau requested, “municipal payroll data, in spreadsheet form (i.e. Excel, CSV, etc.), for calendar years 2017, 2018, and 2019, and including one column for each of the following: • each employee's name; • the City/office/division they worked in that year; • their primary, or most recent, job title for that year; • their total pay for the year; • how much they earned in regular or base pay that year; • and how much they earned in overtime pay that year.” Unsatisfied with the response, Mr. Rocheleau appealed and SPR20/2248 was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public Records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in 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

Stephen K. Withers SPR20/2248 Page 2 December 3, 2020 order to withhold a requested record. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding is based…”); 950 C.M.R. 32.06(3); - se - e -al-so- -D-is-t. -A-tt-o-rn-e-y -fo-r- th-e- N--or-fo-l-k -D-is-t.- V-.- F-la-tl-e-y, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Fees - Municipalities 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 per hour. Id. However, municipalities may charge more than $25 per how 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). The City's November 17, 2020 Fee Estimate In its November 17th response from Attleboro City Solicitor Cindy Amara, the City estimates “the request requires 12 hours of search and segregation time.” The City explained that there is a “fee of $25.00 per hour for search, segregation and redaction time associated with this request.” The City asserts that, “this hourly rate is the maximum allowable rate … as the hourly rate of the lowest paid employee capable of performing this task is higher than $25.00 per hour.” The City estimated a fee of $300.00. The City's fee estimate has not explained with specificity why the indicated amount of time is necessary for producing the requested records. The City has not provided sufficient

Stephen K. Withers SPR20/2248 Page 3 December 3, 2020 explanation to detail why 12 hours of search time is necessary to comply with the records request and is in conformity with G. L. c. 66, §10(d). The City must explain whether it has deducted the two hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested as the City has over 20,000 people. Specifically, the City must clarify how much time is needed to search and how much time is needed to segregate under the law. Further, the City must explain what tasks are necessary to provide the records. Additionally, I find the City must provide information about whether the responsive records contain information that that is required by law to be segregated or redacted, as well as the applicable statutes, if any. For the reasons discussed above, I find the City must revise its fee estimate. Conclusion Accordingly, the City is ordered to provide Mr. Rocheleau with a revised fee estimate, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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: Matthew Rocheleau