Jared Waitkus v. Kingston, Town of - Town Administrator (SPR 20211635)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 15, 2021 SPR21/1635 Patricia Tucker Administrative Assistant to the Town Administrator & Board of Selectmen Town of Kingston 26 Evergreen Street Kingston, MA 02364 Dear Ms. Tucker: I have received the petition of Jared Waitkus appealing the response of the Town of Kingston (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 27, 2021, Mr. Waitkus requested the following: • All emails to and from [the Town Administrator] from 14/May – 27/May. • All emails to and from [a specific] Selectman from 14/May – 27/May. • [Number] of employees of Town, volunteers, and appointed officials that have quit/resigned/fired since [the Town Administrator] started employment as TA in Kingston. The Town responded on June 9, 2021, providing a fee estimate of $50.00. Unsatisfied with the Town’s response, Mr. Waitkus appealed, and this case was opened as a result. Separate Request In his appeal petition, Mr. Waitkus increases the time frame of his original request, stating that “[g]iven the formal complaint investigation is still ongoing [he] would like to add additional time to the original request. All emails for both the Selectmen and Town Administrator from 14/May-30/June.” Please note that this new request for additional records will not be the subject of this appeal. If Mr. Waitkus wishes to submit an additional public records request to the Town, and is unsatisfied with the response, he may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1). 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

Patricia Tucker SPR21/1635 Page 2 July 15, 2021 Fee Estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 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 where 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). Population data shall be determined by the decennial U.S. Census, and it shall be the burden of the RAO to provide population data information when responding to a request. 950 C.M.R. 32.07(2)(m)(2)(ii). 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 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Town’s June 9th Response In its June 9, 2021 response, the Town provides the following information: Due to size of the amount of time to gather and review this information please advise that based on the Town’s good faith estimate, a $50.00 fee will be required. This estimate is based on an estimated time of 2 hours of work at $25.00 an hour. Please be advised that the actual cost and fee of producing the record(s) may vary upon preparation of such record(s). Based on the Town’s response, it is unclear why the Town requires the amount of time indicated to produce the requested records. Specifically, it is unclear why two (2) hours is necessary “to gather and review” the responsive emails. Additionally, the Town has not explained if the hourly rate being used is that of the lowest paid employee with the necessary skill to perform the task. The Town must clarify these matters.

Patricia Tucker SPR21/1635 Page 3 July 15, 2021 Conclusion Accordingly, the Town is ordered to provide a response to Mr. Waitkus, 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: Jared Waitkus