Beth R. Myers v. Dracut, Town of - Town Manager (SPR 20211163)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 19, 2021 SPR21/1163 Ann Vandal Town Manager Town of Dracut 62 Arlington Street Dracut, MA 01826 Dear Ms. Vandal: I have received the petition of Beth Myers, Esq. of Burns & Levinson, LLP appealing the response of the Town of Dracut (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 5, 2021, Attorney Myers requested the following records: 1. Any and all email correspondence between and among [18] email accounts for for the period January 1, 2020 to the present[.] 2. Time, attendance and payroll records indicating payroll codes for accrued time, paid and/or unpaid leave and any other leave usage for [4 identified] Town employees[.] 3. Payroll summary reports for any Town employee not named in Request No. 2, above, who took extended time off (more than two weeks) using accrued time, unpaid leave, or 111F leave for the period January 1, 2020 to the present[]. 4. Any and all written minutes and audio/video recordings of Executive Sessions of the Town’s Board of Selectmen that mention or reference . . . from April 1, 2017 through present. 5. Any and all indemnification insurance policies that provide coverage to [an identified individual], including but not limited to the policy referenced in Section 7 of his contract with the Town. 6. Documents concerning the 2015 Risk Assessment Study Report for the Dracut Fire Department created by Municipal Resources, Inc., (the “Report”), including the following: • An unredacted copy of the full Report; • Any and all notes of meetings concerning implementation of the Report’s recommendations; • Any and all working documents and correspondence between the Dracut Town Manager, the Dracut Fire Chief and any other Fire Department 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

Ann Vandal SPR21/1163 Page 2 May 19, 2021 employee concerning the Report, its recommendations, implementation of the recommendations, and the dates and cost of implementation. The Town provided a response on April 30, 2021, which included records responsive to Item 5. With respect to Items 1, 2, 3, and 6, the Town provided fee estimates. Objecting to the fees, Attorney Myers petitioned this office and this appeal, SPR21/1163, was opened as a result. It appears Attorney Myers is not appealing the Town’s response to Item 4. 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). 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 April 30th fee estimate Item 1 With respect to Item 1, the Town states “[m]any of these addresses are with officials likely to have confidential personnel and attorney-client privileged information and will therefore need to be segregated, reviewed, and redacted. We estimate that it takes approximately 3 minutes per email to identify, review, redact, and process. After running a sample on six of the email addresses, we estimate the cost to be approximately $7,000. I am willing to work with you to modify your request to a manageable scope.” The Town’s fee estimate states that it would take approximately 3 minutes to review, redact and process each of the emails and assesses a fee of $7000. However, it is unclear how the Town requires 3 minutes per email to perform the stated tasks. It is not certain how many hours the Town requires to produce records, nor how many hours it is allocating to identifying,

Ann Vandal SPR21/1163 Page 3 May 19, 2021 reviewing, redacting and processing the records. Based on the Town’s response, it is additionally uncertain how many email records the Town intends to review and redact. Please note that under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. See 950 C.M.R. 32.06(4)(g). Based on the Town’s response, where the redaction of personnel information is not required by law, I find the Town may not assess a fee for redacting these portions of the records. Under the Public Records Law, 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. G. L. c. 66, § 10(d)(iii). Based on the Town’s response, it is unclear how the hourly rate being used is that of the lowest paid employee with the necessary skill capable of performing the tasks involved. Item 2 With respect to Item 2, the Town states that it has “. . . tools to run a report for the requested payroll records but will need to redact confidential information. The estimated cost of this work is $200.” Based on the Town’s response, it is unclear how many hours the Town requires to redact confidential information from the responsive records. It is additionally uncertain how redaction is required by law in this matter. Specifically, it is not clear what type of confidential information the responsive records contain, and which statutes, if any, require redaction. As such, I find the Town must provide information about whether the responsive records contain information that is required by law to be redacted, as well as the applicable statutes, if any. Further, it is unclear the number of records the Town is looking to redact and the number of pages there are. Also, the Town did not indicate how many minutes per page it requires to redact the responsive records. The Town must clarify these issues. Item 3 With respect to Item 3, the Town states that “[t]his request is too broad. We have over 700 employees. Assuming that you are not including school employees, we would have to review about 450 employees’ time. If we were able to generate a report that would give you this information, with redaction, etc. we are looking at the costs being well beyond several thousand dollars. In addition, the Town would have to contract our software vendor to create report. I am willing to work with you to modify your request to a manageable scope.”

Ann Vandal SPR21/1163 Page 4 May 19, 2021 In light of the Town’s response, I encourage Attorney Myers and the Town to communicate in order to facilitate producing records efficiently and affordably. Attorney Myers may wish to narrow the parameters or include factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). See G. L. c. 66, § l0(a)(vii) (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). Item 6 Regarding Item 6, the Town indicates “[t]he volume of documents responsive to your sixth request is huge. Even at only $0.05 a copy, I estimate that the reproduction cost is $100. . . . If you wish to proceed with the document production for items 1, 2, and 4-6, please forward a check in the amount of $7,250, the estimated cost minus $50 for 2 hours’ time.” Based on the Town’s response, it is unclear how many pages of records the Town intends to photocopy. Further, in her appeal petition, Attorney Myers claims, “[t]he Town has included a ($.05) per page fee for an undisclosed number of copies. It is our belief that all of these documents exist in digital electronic form. There is no need to assess a per page copy fee.” Under the Public Records Regulations, a records access officer must “to the extent feasible, provide public records to a requester in electronic format unless the record is not available in electronic form or the requester does not have the ability to receive or access the records in electronic format and if feasible, in the requester’s preferred format. . . .” 950 C.M.R. 32.04(5)(d). Consequently, if the records are available in electronic form, it is unclear how the Town is assessing a fee for copying the records. The Town must clarify this issue. Conclusion Accordingly, the Town is ordered to provide Attorney Myers 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: Beth Myers, Esq.