Jonathan Viner v. Spencer, Town of (SPR 20212103)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 1, 2021 SPR21/2103 Brenda Savoie Town of Spencer 157 Main Street Spencer, MA 01562 Dear Ms. Savoie: I have received the petition of Jonathan Viner appealing the response of the Town of Spencer (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 20, 2021, Mr. Viner requested the following categories of records: [1] All emails sent and received, including all attachments, embedded objects and pictures, from any email account used by [named individual] that would contain public records. This would include, but not be limited to, the email address of . . .@spencer.gov. The time period for this request will be from June 1st, 2020 to May 19, 2021. [2] All emails sent and received, including all attachments, embedded objects and pictures, from any email account used by [named individual] that would contain public records . . . from June 1st, 2020 to May 19, 2021. [3] All emails sent and received, including all attachments, embedded objects and pictures, from any email account used by [named individual] that would contain public records . . . from June 1st, 2020 to May 19, 2021. [4] All emails sent and received, including all attachments, embedded objects and pictures, from any email account used by [named individual] that would contain public records . . . from June 1st, 2020 to May 19, 2021. [5] The authorized/executed contract between the Town of Spencer and [named individual] for the services provided to the Town by [named individual] in the role of Interim Highway Superintendent, in its entirety. This shall include any amendments, revisions, addenda, exhibits, and relevant referenced documents. [6] Any and all invoices received by the Town of Spencer from [named individual] for any services provided to the Town regarding [named individual]. [7] Any and all payment vouchers created for the payment of [named individual] invoices for any services provided to the Town regarding [named individual]. [8] The Certificate of Liability Insurance held by the Town of Spencer, provided 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

Brenda Savoie SPR21/2103 Page 2 September 1, 2021 by [named individual] in regards to the previously referenced contract between the Town of Spencer and [named individual]. Previous petition This request was the subject of a previous fee petition. See SPR21/1378 Determination of the Supervisor of Records (June 8, 2021). In my June 8th determination, I found the Town had 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 $25.00 per hour. Subsequently, the Town provided a response on June 15, 2021. Objecting to the fees, Mr. Viner petitioned this office and this appeal, SPR21/2103, was opened as a result. While this appeal was pending, the Town provided a supplemental response on August 24, 2021. Fee estimates – municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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 June 15th fee estimate In its June 15, 2021 fee estimate, the Town assessed a fee of $8,850 to produce 20,951 responsive email records. The Town states the following: [1] Executive Assistant to Town Administrator 2 hours no charge . . . [2] 20,951 emails requiring review: One minute to review each email 349 hours at $25.00 per hour equals $8,725.00. [3] ClearCom, Town IT consultant, time to retrieve email 5 hours at $25.00 per hour equals $125.00.

Brenda Savoie SPR21/2103 Page 3 September 1, 2021 Total is $8,850. In its August 24, 2021 supplemental response, the Town indicates that there are “. . . court actions and Lawyer – Client confidential emails contained within the mass of emails” and provided a breakdown of the responsive email records as follows: [1] . . . number of emails sent to this account: 4689, number of emails sent from this account: 670 [2] . . . number of emails sent to this account: 5517, number of emails sent from this account: 1323 [3] . . . number of emails sent to this account: 2650, number of emails sent from this account: 1315 [4] . . . number of emails sent to this account: 3213, number of emails sent from this account: 1574[.] The Town indicates, “Executive Assistant to Town Administrator 2 hours no charge . . . [and] ClearCom, Town IT consultant, time to retrieve email 5 hours at $25.00 per hour equals $125.00.” However, it is unclear what task the Executive Assistant is performing and why the task requires 2 hours to complete. It is additionally uncertain the tasks involved in the retrieval process and why the Town IT consultant requires 5 hours to retrieve the email records. As such, I find the Town must provide additional information regarding these tasks. Further, it appears the Town is assessing a fee for producing only email records which are Items 1-4. As a result, it is unclear whether the Town possesses records responsive to Items 5-8 and when it intends to provide them. The Town must clarify these matters. G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). In his appeal petition, Mr. Viner states “[t]he Town provided an updated fee and time frame estimate on June 15th, 2021. The provided updated time frame of 88 weeks for production of the requested records represents a deliberate, malicious attempt at preventing access to public records.” Under the Public Records Law, “[a] records access officer . . . shall at reasonable times and without unreasonable delay permit inspection or furnish a copy of any public record as defined in clause twenty-sixth of section 7 of chapter 4, or any segregable portion of a public record, not later than 10 business days following the receipt of the request, provided that: . . . (iii) the records access officer receives payment of a reasonable fee as set forth in subsection (d).” G. L. c. 66, § 10(a)(iii). To the extent possible, the Town must provide responsive records on a rolling basis. Where the Town has provided a breakdown of the email records as requested by Mr. Viner, and has expressed its willingness to assist Mr. Viner in modifying this request, this office encourages the parties 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

Brenda Savoie SPR21/2103 Page 4 September 1, 2021 affordably). Mr. Viner and the Town may wish to discuss providing emails with certain topics or recipients in an effort to narrow the request. Please note, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k) (emphasis added). Conclusion Accordingly, the Town is ordered to provide Mr. Viner with a response to the request, provided 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: Jonathan Viner