Jason Forgue v. Chester, Town of - Town Clerk (SPR 20210419)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 5, 2021 SPR21/0419 Rosemary Dalesandro Town Clerk Town of Chester 15 Middlefield Road Chester, MA 01011 Dear Ms. Dalesandro: I have received the petition of Jason Forgue appealing the response of the Town of Chester (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 29, 2021, Mr. Forgue requested “any and all communications between Regional Resource Group Inc. (RRG) and the Town of Chester both leading up and subsequent to their hiring through the date of this request” and “any and all documentation utilized or referenced in said communications.” The Town provided a response on February 1, 2021, which included a fee estimate. Unsatisfied with the Town’s response, Mr. Forgue petitioned this office, and SPR21/0419 was opened as 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 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

Rosemary Dalesandro SPR21/0419 Page 2 March 5, 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Current Appeal In its February 1, 2021, response, the Town indicates the fee for the responsive records is $150.00 indicating “all together it will take 5-6 hours” at a rate of $25.00 per hour. The Town explains “[t]he selectman office and my office will have to go through over 2 years of documents and minutes. This is very time consuming.” In a supplemental response provided on February 2, 2021, the Town further explains “…RRG was probably first discussed in the finance committee meetings in early 2019… [the Town] will have to go into selectboard minutes and copy and scan to email them to you. This will take time. I have to go into the town meeting minutes to look.” In an additional response provided on February 3, 2021, the Town indicates with respect to the hourly rate “[t]he town would have to eat some of the cost because I am sure some make more than $25.00 per hour.” In his appeal, Mr. Forgue indicates “I am appealing both the fee determination and the lack of inclusion of all associated parties in the gathering of requested information.” Mr. Forgue contends “[g]iven my involvement with the town, I know for a fact there are several employees capable of compiling this information that earn less than $25/hour.” I find the Town must provide confirmation that the hourly rate being assessed is that of the lowest paid employee who has the necessary skill required to produce the responsive records. The Town must clarify this matter. Please be advised, this office encourages Mr. Forgue and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Mr. Forgue with a response to the request,

Rosemary Dalesandro SPR21/0419 Page 3 March 5, 2021 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: Jason Forgue