Larry Price v. Wellesley, Town of (SPR 20210688)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 2, 2021 SPR21/0688 K.C. Kato Town Clerk Town of Wellesley 525 Washington Street Wellesley, MA 02482 Dear Ms. Kato: I have received the petition of Larry Price appealing the response of the Town of Wellesley (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 3, 2021, Mr. Price requested “[a]ll electronic mail (email) sent or received by Wellesley Public Schools Superintendent between November 15, 2017 and December 31, 2017.” The Town filed a fee petition with this office on February 11, 2021 pertaining to Mr. Price’s request. On February 22, 2021, the Town provided Mr. Price with a revised fee estimate. Objecting to the assessment of fees, Mr. Price petitioned this office and this appeal, SPR21/0688, was opened as a result. While this appeal was pending, the Town provided a supplemental response on March 23, 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

K.C. Kato SPR21/0688 Page 2 April 2, 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 February 22nd fee estimate In its February 22, 2021 fee estimate, the Town stated there are “approximately 3,612 potentially responsive records. The School Department sent a Fee Petition to the Supervisor of Public Records on February 11, 2021. In accordance with the Supervisor of Public Records’ decision issued today (SPR2l /0344), which is enclosed with this letter, the School Department hereby assesses a fee of $7,833.39 to respond to the request. See M G.L. c.66, § 10(d)”. In his March 19, 2021 appeal, Mr. Price states the Town was required to “respond to my request within ten (10) business days, so the Department should have responded no later than end of day on February 19, 2021 (accounting for the February 15, 2021 federal and state holiday).” Mr. Price believes the fee petition “does not relieve the Department of the requirement to respond within ten (10) business days. The fee estimate provided on February 18, 2021 was not proper since it was based upon charging more than the statutory $25/hour, and the Supervisor had not yet issued a determination allowing the Department to charge more than the statutorily permitted rate.” The Town provided a supplemental response to this office on March 23, 2021 stating: “The [Town] was aware of its obligation to respond to Mr. Price’s request within 10 business days, it issued an interim 10-day response letter (the ‘interim 10-day response’) on February 18, 2021 (Business Day 10). The interim 10-day response informed Mr. Price that the [Town] received his request; reminded him that the [Town] submitted a fee petition on February 11, 2021 and was awaiting a response from your office; informed Mr. Price of the cost of responding to the request if the fee petition was successful; and, offered assistance in narrowing the request. Importantly, the interim 10-day response also indicated that another correspondence would be forthcoming, in the form of a fee estimate, once the [Town] received a ruling on the fee petition.” In a March 24, 2021 communication, Mr. Price asserted the Town had “not proven that it responded properly to my request within the statutory 10 business days requirement.” 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).” The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b).

K.C. Kato SPR21/0688 Page 3 April 2, 2021 In the February 18th response, the Town explained that “[o]n February 11, 2021, the [Town] petitioned the Supervisor of Public Records for the ability to charge fees to segregate and redact the records at a cost of $43.86/hour, pursuant to 950 CMR 32.06(4)(g) and (h) (the ‘Petition’). You received a copy of the Petition. The [Town] has estimated a cost of $7,833.39 to reply to your request.” The Town further explained to Mr. Price that at that time the Supervisor of Records had not yet “responded to the Petition, but is required, by law, to respond within 5 business days of its receipt, and the [Town] expect[s] to receive that response shortly. Upon receipt of the response, the [Town] will update this response letter in the form of a fee estimate.” Where Mr. Price submitted a request on February 3, 2021, and the Town responded by providing a fee estimate on February 18, 2021, under G. L. c. 66, § 10(b), I find the Town may assess a reasonable fee to produce responsive records. Conclusion Accordingly, I will consider this administrative appeal closed. If there are unresolved issues with respect to the fee estimate, Mr. Price may appeal the substance of the fee estimate within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Larry Price