Colman Herman v. Attleboro, City of - Office of the Mayor (SPR 20210702)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 5, 2021 SPR21/0702 Stephen K. Withers City Clerk City of Attleboro 77 Park Street Attleboro, MA 02703 Dear Mr. Withers: I have received the petition of Colman Herman appealing the response of the City of Attleboro (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 3, 2021, Mr. Herman requested: “… copies of any and all legal invoices submitted by law firms to the City of Attleboro … for the period January 1, 2019 to the present.” On February 22, 2021, Mr. Herman modified his request for the period January 1, 2020 to the present. Previous Appeal This request was the subject of a previous appeal. See SPR21/0281 Determination of the Supervisor of Records (February 19, 2021). The City responded on March 4, 2021. Unsatisfied with the City’s response, Mr. Herman appealed and SPR21/0702 was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public Records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding is based…”); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. V. Flatley, 419 Mass. 507, 511 (1995) - ---------------------- (custodian has the burden of establishing the applicability of an exemption). 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

Stephen K. Withers SPR21/0702 Page 2 April 5, 2021 Fees –Municipalities If there are any fees associated with a response a written, good faith estimate must be · provided. G. L. c. 66, § 10(b)(viii); -se-e -a-ls-o 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 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 how 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). 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). The City’s March 4th Fee Estimate In its March 4th response, the City provided an estimate of $75 and explained as follows: • “approximately 250 pages @ $.05 per copy ($12.50) • Search - 3 hours at $25.00 per hour (minus the first two hours of time) ($25 .00) • Segregation and Redacting Student Records (G.L. c. 71, §340) -1-1/2 hours at $25.00 per hour ($37.50).” Current Appeal Based upon the above, the City's fee estimate lacks confirmation that the rate of $25 per hour is of the lowest paid employee who is capable of performing the task(s). Further, it is unclear if the City is charging for segregation and redaction of records pursuant to an exemption required by law. Further, the City must explain why the modified request did not result in a reduced fee estimate.

Stephen K. Withers SPR21/0702 Page 3 April 5, 2021 For the reasons discussed above, I find the City must revise its fee estimate. The City is to provide a response in accordance with the Public Records Law, its Regulations and this order within 10 business days. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman