Jonathan Viner v. Spencer, Town of (SPR 20211378)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 8, 2021 SPR21/1378 David B. Darrin Acting Town Administrator Town of Spencer 9 West Main Street Spencer, MA 01562 Dear Mr. Darrin: I have received your petition on behalf of the Town of Spencer (Town) seeking a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Town furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On May 20, 2021, Jonathan Viner requested several categories of records related to the Town’s Highway Division. Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from an agency to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the agency to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality's petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that the request is not for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the 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

David B. Darrin SPR21/1378 Page 2 June 8, 2021 fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates 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). 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 Petition In its June 1, 2021 petition, the Town requests “…permission to charge the following fees associated with the search, segregation and redaction of the requested records.” In regards to fees, the Town explains that “[o]n 6/1/2021, we spoke with ClearComm, our Information Technology supplier in regard to the request. They stated in a written quotation that they needed 5 hours at $200 per hour for a total of $1,000.00 to search and segregate the 20,951 email messages sent and received from the four requested addresses.” Further “… this request includes emails from two of his predecessors, along with the current Highway Foreman, Mr. Cundiff is the only individual capable of reviewing the documents for potential redaction. Mr. Cundiff’s hourly rate is $51.93. We anticipate that one minute will be needed to review each document. 20,951 emails X 1 minutes= 20,951 minutes/ 60 = 349 hours. $51. 93 X 349 = $18, 123 to research, review and redact the records.” The Town explains that “[t]he requested records include a large number of documents which will need to be reviewed, scanned and redacted as allowed by law. The lowest paid employee who has the necessary skill to complete the search and segregation of these records is ClearComm at a rate of $200 per hour and the Utilities & Facilities Superintendent at a rate of

David B. Darrin SPR21/1378 Page 3 June 8, 2021 $51.93 per hour, since some of these records contain privileged and confidential information.” Although the Town states that the responsive records require segregation and redaction, it has not provided information regarding what exemptions may apply and why such records are likely to contain exempt information. Accordingly, the Town has not met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction, segregation or by assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Conclusion For the reasons described above, I decline to approve the Town’s petition to charge a fee in excess of $25.00 per hour for segregation and redaction. Please note, however, this does not preclude the Town from charging for segregation and redaction that is required by law at a rate of no more than $25.00 per hour. This office encourages Mr. Viner 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). Any updated fee estimate by the Town must be in compliance with this determination, the Public Records Law, and its Regulations. Mr. Viner may appeal the Town’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Jonathan Viner Brenda Savoie