Rob Fasulo v. Nantucket Town Clerk (SPR 20202467)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 29, 2020 SPR20/2467 Nancy Holmes Town and County Clerk 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.” Previous appeal The requested records were the subject of a previous appeal. See SPR20/2263 Determination of the Supervisor of Records (December 3, 2020). In my December 3rd determination, I directed the Town to provide further explanation regarding its fee estimate. Following the December 3rd determination, the Town provided a response on December 6, 2020. Unsatisfied with the Town’s response, Mr. Fasulo petitioned this office and this appeal, SPR20/2467, 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 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 SPR20/2467 Page 2 December 29, 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 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). The Town’s December 6th response In its December 6, 2020 response, the Town explains that “[t]he lowest paid hourly wage of an employee . . . who is able to compile, redact, transfer, etc. this data is $34.44/per hour. . . . The $30 fee we charge is based on our time and sometimes materials, and is an approved fee in our town called ‘Extract from State Voter Registry[.]’” The Town states that it is a municipality with less than 20,000 population and provides the following details regarding its estimate: 1. Read request type and reply to the Requestor: 4– 10 minutes, depending on level of detail. . . . 2. Receive payment, ring into cash register under proper payment code set by Town Finance (2 min.) 3. Log onto the State Voter Registry (VRIS), determine which Extract type to request, make the electronic request (2 – 5 minutes) 4. In the subsequent day or two, check the Voter Registry to see if the download has been received, if so, write down the number sequence of the download, go into another drive of the computer, locate the proper download among the ones listed there, open it, review it is the correct data (many downloads are not for public record as they contain minors or public safety personnel) save it to the State Computer Desktop. (10 min.) 5. Open State Computer email, find the Extract on your Desktop, email it as an attachment to an outside email (as the State Voter Registry is a closed system) (2 - 4 min.) 6. Log onto an outside (Town) computer, open your email, open the attachment, save it to your Desktop (2 – 3 min.) 7. Open the Extract on your Desktop, review again that it is indeed the correct Extract (as not all are Public Records) after ascertaining that it is, find the column that contains phone numbers. According to the Public Records Law: 8. “A private citizen whose cell phone number and personal email address is unpublished may have a reasonable expectation of privacy in this information. . . . Therefore, this information can likely be withheld under the second clause of Exemption (c).” Next redact all phone numbers, as the majority of our residents have Private Cell phones numbers, yet may not have requested in the Annual Town Census whether or not they wish they numbers to remain private. (7-9 minutes)

Nancy Holmes SPR20/2467 Page 3 December 29, 2020 9. Either print and copy on paper, or, open an email, and attach the Extract, draft response to requester. (2 – 4 min. for email, longer for paper copying)[.] Based on the Town’s response, it is unclear how the Town may assess a fee for tasks such as “[1] [r]ead request type and reply to the Requestor: 4– 10 minutes . . . [and] [2] [r]eceive payment, ring into cash register under proper payment code set by Town Finance (2 min.)[.]” Particularly, it is uncertain how these tasks constitute time to search for, compile, segregate or reproduce records. Please note that the Town may not assess a fee for the time it takes to prepare a response in responding to a public records request. In its estimate, the Town states that it is assessing a fee for redacting cell phone numbers and personal email addresses of private citizens. 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). 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). Where the redaction is not required by law, I find the Town may not assess a fee for redacting these records. Where Mr. Fasulo’s November 12th public records request states that the record be provided electronically, it is unclear why the Town is assessing a fee for 2-4 minutes to send a response via email. 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