Rich Saltzberg v. Tisbury, Town of (SPR 20212333)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 21, 2021 SPR21/2333 J. Hillary Conklin Town Clerk Town of Tisbury PO Box 606 51 Spring St. Vineyard Haven, MA 02568 Dear Clerk Conklin: 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 22, 2021, Mr. Saltzberg requested, “[a]ny and all internal investigation reports, misconduct reports, police reports or internal investigation documentation focused on [identified individual], a former officer in the Tisbury Police Department.” The Town provided a response to Mr. Saltzberg on September 7, 2021. Unsatisfied with the Town’s response, Mr. Saltzberg petitioned this office and this appeal, SPR21/2333, 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). 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

J. Hillary Conklin SPR21/2333 Page 2 September 21, 2021 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 September 7th response On September 7, 2021, the Town responded to Mr. Saltzberg by providing him with a fee estimate stating, “[a]fter a review of its records, the Department has records responsive to your request. The total fee estimate (2.5 Hours * $25/hour) for the above-identified request is $62.50. Upon receipt of your payment in the amount of $62.50 made payable to the Town of Tisbury, the Town will begin the work necessary to segregate and redact (where appropriate) the documents you have requested.” The Town explained, “[b]elow is a fee estimate for employee search time, as permitted by law. That time is charged at the hourly rate of the lowest paid person capable of compiling or required by law, segregating, redacting and reproducing responsive records, in accordance with 950 CMR 32.07(2)(i). Hourly rate shall not exceed $25/hour unless otherwise authorized by the state Supervisor of Records. Here, 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.” In addition, the Town explained that Mr. Saltzberg “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.” Based on the Town’s September 7th response, it is unclear why the Town requires the amount of time listed above to produce the requested records and for “the work necessary to segregate and redact.” The Town must provide further information on the details regarding the tasks involved, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The Town must clarify these matters, including the time that is needed to perform segregation and redaction as required by law. 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 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.

J. Hillary Conklin SPR21/2333 Page 3 September 21, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Rich Saltzberg Pam Bennett