Joe Difazio v. Rockland, Town of - Town Clerk (SPR 20210083)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 28, 2021 SPR21/0083 Liza Landy Assistant Town Clerk Town of Rockland 242 Union Street Rockland, MA 02370 Dear Ms. Landy: I have received the petition of Joe DiFazio of the The Patriot Ledger appealing the response of the Town of Rockland (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 12, 2021, Mr. DiFazio requested, “[a]ny and all contracts, agreements of any kind, or memorandums of understandings…” with a named LLC and individual, as well as “[a]ny invoices, receipts, records of payment, bills and other payment arrangements, monetary or otherwise between the town of Rockland/Rockland Police Department…” with the same LLC and individual. The Town provided a response on January 13, 2021, which included a fee estimate. Unsatisfied with the Town’s response, Mr. DiFazio petitioned this office, and SPR21/0083 was opened as a result. Fee Estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 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

Liza Landy SPR21/0083 Page 2 January 28, 2020 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 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Town’s January 13th response In its January 13th response, the Town indicates “…the estimated costs will be: 2 Hours @ $20.93 or $41.86 for retrieving records from the files which are in archive. Plus the cost of photocopies. If he would like to proceed the estimate will be $43.66.” In his appeal, Mr. DiFazio contends “…this request should not take two hours and likely covers only about 10 pieces of paper that would be responsive to the request... Other similarly sized towns we've made this request to have been able to get us the documents without charging a fee, within minutes…” Based on the Town’s response, it is unclear why the Town requires the amount of time indicated to produce the requested records. Specifically, it is unclear why two (2) hours is necessary “for retrieving records from the files which are in archive.” Additionally, the Town has not explained if the hourly rate being used is that of the lowest paid employee with the necessary skill to perform the task. The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide a response to Mr. DiFazio, 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: Joe DiFazio