Todd Wallack v. Becket, Town of - Town Clerk's Office (SPR 20210110)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 1, 2021 SPR21/0110 George Roberts Town Clerk Town of Becket Becket Town Hall 557 Main Street Becket, MA 01223 Dear Mr. Roberts: I have received the petition of Todd Wallack of the Boston Globe appealing the response of the Town of Becket (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 29, 2020, Mr. Wallack requested “[a]n electronic copy of the municipality’s public list of registered voters, also known as the voter file.” The Town responded on December 29, 2020, providing a fee estimate. Objecting to the fees, Mr. Wallack petitioned this office and this appeal, SPR21/0110, was opened as a result. While this appeal was pending, the Town provided a supplemental response on January 19, 2021. 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

George Roberts SPR21/0110 Page 2 February 1, 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 29th fee estimate In its December 29, 2020 fee estimate, the Town states that it requires “. . . 1 hour to locate, compile, and transmit the documents responsive to your requests. . . . There will also be a $10.00 charge for media (CD or DVD and/or Postage). Also there will be a $0.05 charge per page of documents. [The Town] estimate[s] that your request will be in the neighborhood of 100 pages. . . . It is this office’s policy not to transmit voter information over the internet.” The Town indicates that the hourly rate of the lowest paid employee capable of performing the tasks necessary to produce the records is $23.82 per hour. As a result, the Town estimates that the total cost of producing the requested record is $53.82. In his appeal petition, Mr. Wallack states the following: The town failed to provide a complete response within 10 days. The agency’s response did not include all the elements required, including a statement informing the requester of the right of administrative appeal to the Supervisor under 950 CMR 32.08(1) and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court. Under state law, a fee for a public record may not be charged unless the records access officer responded to the requestor within 10 business days under G. L. c. 66, § 10(b)[.] G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Mr. Wallack submitted a request on December 29, 2020, and the Town responded by providing a fee estimate on the same day, under G. L. c. 66, § 10(b), I find the Town may assess a fee to produce responsive records. However, based on the Town’s fee estimate, it is unclear why it requires an hour to locate, compile and transmit responsive records. The Town must provide further details regarding what each task entails, including the time it is allocating to locating, compiling, and transmitting the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, the Town states that “[i]t is [its] policy not to transmit voter information over the internet.” Additionally, in its January 19, 2021 supplemental response, the Town states that “[its] review of Chapter 66, specifically § 6A thereto, specifies that public records be provided in electronic form. CDs and DVDs are electronic digital media, and § 6A does not mandate transmission via email.”

George Roberts SPR21/0110 Page 3 February 1, 2021 Please be advised that pursuant to the Public Records Law, “[t]he records access officer shall provide the public records to a requestor by electronic means unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in a usable electronic form. The 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). Accordingly, whereas Mr. Wallack has indicated that he prefers to receive the records electronically via email, I find the Town has not demonstrated that it may charge for a CD/DVD or the production of records in hard copy at this time. The Town has neither demonstrated why it is not feasible to send the requested records via email. Conclusion Accordingly, the Town is ordered to provide Mr. Wallack 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: Todd Wallack