Francesca Paris v. Great Barrington, Town of - Office of the Town Clerk (SPR 20211975)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 10, 2021 SPR21/1975 Jennifer L. Messina Records Access Officer Town of Great Barrington 334 Main Street Great Barrington, MA 01230 Dear Ms. Messina: On August 3, 2021, this office received your petition on behalf of the Town of Great Barrington (Town) requesting permission to charge for time spent segregating or redacting responsive records as well as to charge in excess of the statutory fees. G. L. c. 66, § 10 (d)(iv). As required by law, it is my understanding that the Town furnished a copy of this petition to the requestor, Francesca Paris of the Berkshire Eagle. Id. On July 20, 2021, Ms. Paris requested “…any/all logs/lists of internal investigation cases of police department employees from January 1, 2011 through the present, including but not limited to pending cases…as well as any final disciplinary action linked to complaint.” Petitions to Assess Fees 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 (Supervisor) 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). 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. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). 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

Jennifer L. Messina SPR21/1975 Page 2 August 10, 2021 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; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). 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 The Town’s August 3rd petition states, “[t]his letter is a request to petition the maximum hourly rate of $25 per hour for time spent segregating or redacting records for a current public records request we have from Francesca Paris of The Berkshire Eagle.” The Town notes, “[t]o date, the police department has spent over two hours on this request and they have now started to process approximately 750 pages of documents for redaction. Chief Storti estimates another 10 -12 hours to complete the redaction. Due to the sensitive personnel information, the lowest paid administrative employee for this task would be Sergeant Carlotta whose pay rate is $45.83 per hour. The town would like to petition to charge

Jennifer L. Messina SPR21/1975 Page 3 August 10, 2021 The Berkshire Eagle $45.83 per hour instead of the maximum allowed by Public Record Law of $25 per hour for this request.” Conclusion Given the public interest served by limiting the cost of public access to the requested records, I am unable to grant permission to charge for time spent segregating or redacting responsive records or to charge in excess of $25 an hour. Please note, this does not preclude the Town from charging for segregation and redaction that is required by law at $25.00 per hour. Sincerely, Rebecca S. Murray Supervisor of Records cc: Francesca Paris