James R. Waugh v. Belmont, Town of - Town Clerk (SPR 20212048)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 23, 2021 SPR21/2048 Ellen O’Brien Cushman Town Clerk Belmont Town Hall 455 Concord Avenue Belmont, MA 02478 Dear Ms. O’Brien Cushman: I have received the petition of James R. Waugh appealing the response of the Town of Belmont (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 22, 2021, Mr. Waugh requested, “[a]ll Belmont, MA Covid-19 safety violation citations; filed from 3/10/2020 to the present; and, [a]ll Belmont, MA Covid-19 safety- related complaints filed from 3/1 0/ 2020 to present.” The Town provided a response on May 17, 2021. Unsatisfied with the Town’s response, Mr. Waugh petitioned this office and this appeal, SPR21/2048, 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) 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 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

Ellen O’Brien Cushman, RAO SPR21/2048 Page 2 August 23, 2021 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 May 17th response On May 17, 2021, the Town responded to Mr. Waugh stating, “[t]he Town of Belmont is unable to provide an alternative means to preview materials related to this request. In order to provide access to these materials, town staff will be required to dedicate multiple work hours to thoroughly review all documents and redact sensitive information. The process by which each document is reviewed will require a total of at least 20 hours of staff work time. Please be advised that the Town of Belmont cannot begin work on this materials request until payment for it is received. The fee associated with this request cannot be waived.” The Town explained, “[t]he Town is permitted to charge $.05 per copy and actual reproduction costs for unique items such as full-size plans. If collecting, preparing, and redacting the requested documents will take more than two (2) hours, the Town may charge for the wages of the lowest-paid employee who can perform the research/copying or redacting work, up to $25 per hour. The first two (2) hours of labor are free.” The Town provided the calculation: • Pages (double-sided) at $0.05: Number of pages 0 x 0.05 = $0. • Hours: Number of hours 20 x $25 (maximum $25 per hour) = $ 500. • Oversize copies or printing: Actual cost of production = $ for _____. • Total good faith estimated fee for fulfillment of your Public Records Request is $500.00. Based on the Town’s response, it is unclear why the Town requires the amount of time listed above to produce the requested records. The Town must provide further details about the tasks required to produce these records. The Town must clarify these matters, including whether any segregation and redaction is required by law. Conclusion Accordingly, the Town is ordered to provide Mr. Waugh with a response to the request, provided 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, ,(} .11 •• ~ - ~Q ~ c · Rebecca S. Murray Supervisor of Record cc: James R. Waugh