Rob Fasulo v. Brockton, City of (SPR 20202398)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 17, 2020 SPR20/2398 Anthony Zeoli City of Brockton City Hall 45 School Street Brockton, MA 02301 Dear Mr. Zeoli: I have received the petition of Rob Fasulo appealing the response of the City of Brockton (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 23, 2020, Mr. Fasulo requested “[a]n electronic copy of the most recent registered voter list for your municipality.” The City responded on November 30, 2020, providing a fee estimate. Objecting to the fees, Mr. Fasulo petitioned this office and this appeal, SPR20/2398, 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

Anthony Zeoli SPR20/2398 Page 2 December 17, 2020 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 November 30th fee estimate On November 30, 2020, the City indicated that it will assess a fee of $10.00 to produce the responsive records. Although the City stated that it will assess a $10.00 fee, it is unclear how the City calculated its $10.00 fee. Particularly, it is unclear how many hours will be spent searching, segregating, redacting or reproducing the records. The City 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 City’s fee estimate does not make clear if this is the case. As such, the City 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 City 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 City 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 City 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.

Anthony Zeoli SPR20/2398 Page 3 December 17, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Rob Fasulo