Rob Fasulo v. Nantucket Town Clerk (SPR 20210059)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 26, 2021 SPR21/0059 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). On November 12, 2020, Mr. Fasulo requested “. . . [a]n electronic copy of the most recent registered voter list for your municipality.” Previous appeals The requested records were the subject of previous appeals. See SPR20/2263 Determination of the Supervisor of Records (December 3, 2020) and SPR20/2467 Determination of the Supervisor of Records (December 29, 2020). In my December 29th determination, I directed the Town to provide further explanation regarding certain portions of its fee estimate. Following the December 29th determination, the Town provided a response on January 7, 2021. Unsatisfied with the Town’s response, Mr. Fasulo petitioned this office and this appeal, SPR21/0059, 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, 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 SPR21/0059 Page 2 January 26, 2021 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). Current appeal In my December 29th determination, I stated that “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.)[.]’” I further mentioned 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). . . .Where the redaction is not required by law, I find the Town may not assess a fee for redacting these records.” In its January 7, 2021 response, the Town states that it understands it cannot assess a fee for the above referenced tasks. However, the Town explains that “there are many steps involved that justify this fee, and it involves both the making of a specific data request, and the transference of that specific data from a closed State Computer System, to an open municipal computer. . . . Our time and resources are limited, and our municipalities are worthy of fair recompense where allowed.” The Town posits that “[a]lthough [it] would prefer to standby [its] 12+ years fee of $30, [it is] willing to adjust [it’s] fee to $25 if the Supervisor requires [it] too. . . . Many other towns in the Commonwealth charge this very same fee. . . . If the Supervisor is to determine a different fee, . . . [the Town] will share that ruling with [its] colleagues. . . .” G. L. c. 66, § 10(d) provides that “[a] records access officer may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. The reasonable fee shall not exceed the actual cost of reproducing the record.” G. L. c. 66, § 10(d)(iii) also provides that “if a municipality is required to devote more than 2 hours of employee time to search for, compile, segregate, redact or reproduce a record requested, the records access officer 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 the record requested but the fee (A) shall not be more than $25 per hour . . .” In its December 6th estimate, the Town provided the following details:

Nancy Holmes SPR21/0059 Page 3 January 26, 2021 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) 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)[.] Where the Town indicates that it understands that it may not assess a fee for tasks 1, 2, and 8, the Town must exclude these tasks from its fee estimate. The Town may assess a fee for tasks 3-6 which per the Town’s estimate ranges between 16 minutes - 22 minutes. Accordingly, where the Town’s estimated time to produce records is less than an hour, I find the Town may not assess an hourly rate of $25 for producing the requested records. Per G. L. c. 66, § 10(d), which contemplates that “. . . [t]he reasonable fee shall not exceed the actual cost of reproducing the record[,]” the Town may only assess a fee equivalent to the dollar amount of the 22 minutes required. Additionally, in my December 29th determination, I directed the Town to explain why it is “. . . assessing a fee for 2-4 minutes to send a response via email.” Based on the Town’s January 7th response, it remains unclear why the Town is estimating 2-4 minutes to send an email.

Nancy Holmes SPR21/0059 Page 4 January 26, 2021 Conclusion Accordingly, the Town is ordered to revise its fee estimate to reflect the above, and provide a response to Mr. Fasulo in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of the Town’s 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