Rich Saltzberg v. Tisbury, Town of (SPR 20212332)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 23, 2021 SPR21/2332 Pam Bennet Town of Tisbury Box 1239 51 Spring Street Vineyard Haven, MA 02568-0606 Dear Ms. Bennet: I have received the petition of Rich Saltzberg of the Martha’s Vineyard Times, appealing the response of the Town of Tisbury (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 20, 2021, Mr. Saltzberg requested “. . . any and all internal or external investigation reports on [named individual’s] affair, including any investigations of [a named] Officer. . . .” The Town responded on September 7, 2021, providing a fee estimate. Objecting to the fees, Mr. Saltzberg petitioned this office and this appeal, SPR21/2332, was opened as a result. 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 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

Pam Bennet SPR21/2332 Page 2 September 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). 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). The Town’s September 7th fee estimate In its September 7, 2021 fee estimate, the Town states “. . . the [Town] has records responsive to your request. The total fee estimate (5.5 Hours * $25/hour) for the above-identified request is $137.50. Upon receipt of your payment . . ., the Town will begin the work necessary to segregate and redact (where appropriate) the documents you have requested. 950 CMR 32.06(2)(f).” The Town explains, “. . . the lowest paid employees capable of searching, and segregating, the requested records are the Interim Chief of Police, Lieutenant, and the Human Resource Coordinator. Their hourly rates are in excess of $25/hour so you will only be charged $25/hr. Considering the Town has less than 20,000 residents as of the last Decennial U.S. Census, you will be charged for all hours of work associated with this request.” The Town further indicates “. . . you may also be provided with a supplemental fee estimate thereafter if the documents sought require redactions pursuant to exemption (a) of the Public Records Law.” Although the Town states that it requires 5.5 hours to produce responsive records, it is unclear how the time is necessary to complete the tasks involved in producing responsive records. Particularly, it is unclear how many hours will be spent searching, segregating and redacting the responsive records. Please note that under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. See 950 C.M.R. 32.06(4)(g). As such, I find the Town must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statute(s), if any. Further, it is uncertain the number of records the Town is looking to segregate and redact, as well as the number of pages there are. Additionally, it is not clear how many minutes per page the Town requires to review the responsive records. The Town must clarify these issues. Conclusion Accordingly, the Town is ordered to provide Mr. Saltzberg 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.

Pam Bennet SPR21/2332 Page 3 September 23, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Rich Saltzberg