Jenna Lazaris v. Nantucket Town Clerk (SPR 20202570)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 8, 2021 SPR20/2570 Nancy Holmes, CMC Town Clerk Town of Nantucket 16 Broad Street Nantucket, MA 02554 Dear Ms. Holmes: I have received the petition of Jenna Lazaris 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 December 12, 2020, Ms. Lazaris requested “[a]n electronic copy of the most recent registered voter attendance list for the November 3rd 2020 Presidential Election for your municipality.” The Town provided responses on December 22, 2020, including a fee estimate. Objecting to the fees, Ms. Lazaris petitioned this office and this appeal, SPR20/2570, was opened as a result. While this appeal was pending, the Town provided a supplemental response on December 29, 2020. 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). 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, CMC SPR20/2570 Page 2 January 8, 2021 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 22nd and December 29th responses In one of its December 22, 2020 responses, the Town indicated that it does “. . . not possess an electronic copy of the voter attendance list for the Nov. 3, 2020 presidential election.” When Ms. Lazaris inquired whether the records could be mailed to her, the Town explained that it does “. . . not have a scanned copy, and our copier scanner does not have the memory to scan such a large document. As our Voter’s List is a sole original document, has hole punches, and is somewhat dog-eared, [the Town] cannot allow it to go through a scanner or any form of stack duplicator. [] If you would like a paper photocopy, the fee is $100, including paper and postage. The document is nearly 500 pages long, and legal-sized. We would have to copy it on the platen one sheet at a time, and it would take several hours to do so, hence the fee.” In its December 29, 2020 supplemental response, the Town reiterated that “. . . due to [the record’s] singular nature and the fact that it is already care worn, [it] will not allow it to be fed through a copier duplicator or a scanner, as [it] cannot allow the risk of it being torn. If a paper copy is desired, it must be done by hand, sheet by sheet, individually on the platen. [The Town’s] copier machine does not have the capability to scan a document of this size, length and detail. [The Town] estimate[s] it will take four or more hours to copy this document singly, by myself and/or a staff member. This does not include postage, so the estimate of $100 to copy this this request is likely an underestimate of the true cost. . . .” Based on the Town’s response, it is unclear why producing the records electronically is not feasible. Please be advised that pursuant to the Public Records Law, “[t]he records access officer shall, to the extent feasible, provide the public record in the requestor’s preferred format or, in the absence of a preferred format, in a searchable, machine readable format.” See G. L. c. 66, § 6A(d). The Town must clarify this issue. Conclusion Accordingly, the Town is ordered to provide Ms. Lazaris 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.

Nancy Holmes, CMC SPR20/2570 Page 3 January 8, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Jenna Lazaris