Rob Fasulo v. Nantucket Town Clerk (SPR 20202263)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 3, 2020 SPR20/2263 Nancy Holmes Town of Nantucket 16 Broad Street Nantucket, MA 02554 Dear Ms. Holmes: I have received the petition of Rob Fasulo appealing the response of the Town of Nantucket (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 12, 2020, Mr. Fasulo requested “. . . [a]n electronic copy of the most recent registered voter list for your municipality.” The Town responded on November 18, 2020, providing a fee estimate. Objecting to the fees, Mr. Fasulo petitioned this office and this appeal, SPR20/2263, was opened 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). 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). 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

Nancy Holmes SPR20/2263 Page 2 December 3, 2020 The Town’s November 18th fee estimate On November 18, 2020, the Town indicated that it will assess a fee of $30.00 to produce the responsive records. After Mr. Fasulo inquired about the fees, the Town explained that “[t]he information that you are requesting does not simply involve an attachment to an email. It requires our time to request, then retrieve, then download and transfer a file to our town computer, that originates in our State Voter Registry (a separate computer & system entirely.) The State allows us to charge for our time and effort in the transference of this report. . . .” Although the Town stated that “[i]t requires . . . time to request, then retrieve, then download and transfer a file to our town computer, that originates in our State Voter Registry[,]” it is unclear how the Town calculated its $30.00 fee. Particularly, it is unclear how many hours will be spent requesting, retrieving, downloading and transferring the responsive files. The Town must provide further details regarding what each task entails, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Employee time The Regulations provide that a municipality with a population of 20,000 or fewer may assess a fee for the first two hours of work performed. See 950 C.M.R. 32.07(2)(m)(2). Population data shall be determined by the decennial U.S. Census and it is the burden of the municipal RAO to provide such information in its response. 950 C.M.R. 32.07(2)(m)(2)(i-ii). The Town’s fee estimate does not make clear if this is the case. As such, the Town must clarify this issue. Under the Public Records Law, 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. G. L. c. 66, § 10(d)(iii). 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). Consequently, the Town must provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). 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

Nancy Holmes SPR20/2263 Page 3 December 3, 2020 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