Susan Butler v. Sheffield, Town of - Town Clerk (SPR 20211611)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 13, 2021 SPR21/1611 Jill Hughes Assistant to the Town Administrator Town of Sheffield 21 Depot Square Sheffield, MA 01257 Dear Ms. Hughes: I have received the petition of Susan Butler appealing the response of the Town of Sheffield (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 24, 2021, Ms. Butler requested to view the Select Board files regarding John Hanlon's airstrip. Prior appeals The requested records were the subject of prior appeals. See SPR21/0849 and SPR21/1426 Determinations of the Supervisor of Records (Supervisor) (April 20, 2021 and June 18, 2021). In my April 20th determination, I found the Town’s fee estimate had not sufficiently explained the amount of time that is necessary to produce the responsive records. The Town provided a response on April 28, 2021, which included a fee estimate. Unsatisfied with the Town’s response, Ms. Butler petitioned this office, and SPR21/1426 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 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

Jill Hughes SPR21/1611 Page 2 July 13, 2021 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). The Town’s April 28th and July 9th responses In its April 28, 2021 response, the Town indicates, “[t]he lowest paid employee, Assistant to Town Administrator, able to complete the search these records, has a salary of $24.49 per hour. The original estimate was based on 1.5 hours of time to search the basement and third floor records storage areas.” The Town further indicates “[t]o help reduce the cost we would hire a person for one hour, at minimum wage, to assist you while you view the files: $13.50. Since these are vital records it is important that they stay in the Town’s possession and in same manner in which they were found.” The Town’s total fee estimate it $50.24. In my June 18, 2021 determination, I advised the Town it cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a). See G. L. c. 66, § 12; see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Further, ----------------------------- pursuant to 950 C.M.R. 32.06(2)(a), a records access officer or designee shall permit inspection or provide or furnish a copy of all public records within the custody and control of the custodian at reasonable times and without unreasonable delay under G. L. c. 66, § 10(a). On June 23, 2021, Ms. Butler petitioned the Supervisor seeking a determination pertaining to the Town’s fees of $36.74 for 1.5 hours of time to search for the records, and $13.50 to hire a person to be in the room while Ms. Butler reviews the records at the Town Hall. As a result, this office opened the current appeal. On July 9, 2021, the Town provided a further response. In its July 9th letter, the Town asserts, “[o]ur response to Ms. Butler regarding viewing the files stated that we had files in the basement and attic of the Town Hall. Our charges were not based on organization and management but rather for the time to gather the many files related to this request. These files are organized, but there are many and we charged for the time to bring them to a satisfactory place in Town Hall to all viewing.” In addition, the Town’s response explains, “[t]own [h]all opened to the public on July 1st, and we are asking that we be allowed to charge $13.50 to hire someone to be in the room while

Jill Hughes SPR21/1611 Page 3 July 13, 2021 the files are being viewed. This request is being made because we have minimal staff and want to ensure that the files stay organized and intact.” The Town is advised, there is no provision in the Public Records Law that allows the Town to charge a fee to supervise a requestor who is reviewing public records. With regard to the Town’s $36.74 fee estimate of 1.5 hours of time to search for the files responsive to Ms. Butler’s request, it is unclear how many files the Town has regarding the request that would support the Town assessing 1.5 hours of time. The Town must clarify this issue. Conclusion Accordingly, the Town is ordered to provide Ms. Butler with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 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: Susan Butler