Joseph Smith v. North Adams, City of - City Administrator (SPR 20212170)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 9, 2021 SPR21/2170 Angie Ellison Records Access Officer City of North Adams 10 Main Street North Adams, MA 02147 Dear Ms. Ellison: I have received the petition of Joseph Smith appealing the response of the City of North Adams (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 15, 2021, following an email correspondence with the City, Mr. Smith requested the following: Any public records that relate to or mention the claims of [a specific] shooting incident . . . its investigation, any determinations made from the investigation, and any opinions shared in regard to the matter. [Mr. Smith] seek[s] such records that both the city of North Adams and NAPD may hold, such as any discussions between city administration, city elected officials, police investigators, and staff. The date range for [his] request is July 24th 2020 to October 1st 2020. Previous appeal This fee estimate has been the subject of a previous appeal. See SPR21/1984 Supervisor of Records Determination (August 16, 2021). In my August 16th determination, I ordered the City to provide further details regarding the tasks involved in providing records, and to explain its hourly rate. The City responded on August 24, 2021, providing an updated fee estimate. Objecting to the fees, Mr. Smith further appealed, and this case 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). 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

Angie Ellison SPR21/2170 Page 2 September 9, 2021 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 City’s August 24th Fee Estimate In its August 24, 2021 fee estimate, the City states the following: [The City] assessed the fee which would include- searching and compiling files at the police station for the incident (5 minutes for the database)- searching phone recording of calls (10 minutes to search) as the archived information is not individually done. Searching and compiling any communication (email search of municipal email accounts) takes about 10 minutes (segregate the emails by the date parameter then looking at each email to find any relevant communications) per account (whereas there were more than 15 relevant accounts, the total time 150 minutes). Then compiling (scanning and copying) the record to an electronic format would take another 5 minutes. The total time to get the record would be [] 170 minutes (2.83 hours) which should have been $70.75. Whereas the police officer and IT specialists who have access to search said records make more than $25 per hour, the fee was assessed accordingly. In a phone conversation with this office on September 9, 2021, the City clarified that the word “segregate” as used above indicates “to sort” the emails by date rather than “to redact.” Please note that 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). No Duty to Answer Questions or Conduct Research In his appeal petition, Mr. Smith raises a number of questions concerning fees charged to other requestors, and recent changes in City policies concerning fees for public records. Please be advised, that under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977).

Angie Ellison SPR21/2170 Page 3 September 9, 2021 Conclusion As set forth above, I find the City has met its burden in responding to Mr. Smith’s request at this time. Any revision to the request would result in the requirement to issue a revised estimate. Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Joseph Smith