Rob Fasulo v. Dunstable, Town of - Office of the Town Clerk (SPR 20202394)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 17, 2020 SPR20/2394 Carol Skerrett Town Clerk CMMC Town of Dunstable 511 Main Street Dunstable, MA 01827 Dear Ms. Skerrett: I have received the petition of Rob Fasulo appealing the response of the Town of Dunstable (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 9, 2020, Mr. Fasulo requested “[a]n electronic copy of the most recent registered voter list for your municipality.” The Town responded on November 9, 2020, providing a fee estimate. Objecting to the fees, Mr. Fasulo petitioned this office and this appeal, SPR20/2394, 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). 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 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

Carol Skerrett SPR20/2394 Page 2 December 17, 2020 petition under G. L. c. 66, § 10(d)(iv). -Se-e G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Town’s November 9th fee estimate On November 9, 2020, the Town indicated that it will assess a fee of $10.00 to produce the responsive records. After Mr. Fasulo inquired about the fees, the Town explained in a November 27th correspondence that “[t]he public records law allows [it] to charge for voter list and extracts unless you are a candidate for election in which case you are entitled to one free list. In effect you are paying for the time for me to gather the information and produce the records you are seeking.” In a subsequent response on November 30, 2020, the Town states that it can assess the $10.00 fee per G. L. c. 40, § 22F. G. L. c. 40, § 22F provides in relevant part: License fees; service charges; acceptance of section Any municipal board or officer empowered to issue a license, permit, certificate, or to render a service or perform work for a person or class of persons, may, from time to time, fix reasonable fees for all such licenses, permits, or certificates issued pursuant to statutes or regulations wherein the entire proceeds of the fee remain with such issuing city or town, and may fix reasonable charges to be paid for any services rendered or work performed by the city or town or any department thereof, for any person or class of persons; provided, however, that in the case of a board or officer appointed by an elected board, the fixing of such fee shall be subject to the review and approval of such elected board. A fee or charge imposed pursuant to this section shall supersede fees or charges already in effect, or any limitations on amounts placed thereon for the same service, work, license, permit or certificate; provided, however, that this section shall not supersede the provisions of sections 31 to 77, inclusive, of chapter 6A, chapter 80, chapter 83, chapter 138, sections 121 to 131N, inclusive, of chapter 140 or section 10A of chapter 148. The provisions of this section shall not apply to any certificate, service or work required by chapters fifty to fifty-six, inclusive, or by chapter sixty-six. The fee or charge being collected immediately prior to acceptance of this section for any license, permit, certificate service or work will be utilized until a new fee or charge is fixed under this section. The provisions of this section may be accepted in a city by a vote of the city council, with the approval of the mayor if so required by law, and in a town by vote of the town meeting, or by vote of the town council in towns with no town meeting. G. L. c. 40, § 22F (emphasis added). Per the above, the Town provided a link to a list of set fees on the Town’s website, which

Carol Skerrett SPR20/2394 Page 3 December 17, 2020 includes a fee of $10.00 for voter extracts. Where the above statute does not apply to Chapter 66, which pertains to the Public Records Law, it is unclear how the Town can use its set fees for this public records request. As such, it is necessary to analyze the reasonableness of the Town’s fee estimate under the Public Records Law. In its fee estimate, the Town stated that it will assess a $10.00 fee. However, it is unclear how the Town calculated its $10.00 fee. Particularly, it is unclear how many hours will be spent searching, segregating, redacting or reproducing the records. The Town must provide further details regarding the tasks involved, 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 preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Carol Skerrett SPR20/2394 Page 4 December 17, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Rob Fasulo