Rich Saltzberg v. Tisbury, Town of (SPR 20212334)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 21, 2021 SPR21/2334 Pam Bennett Office of the Select Board Town of Tisbury PO Box 1239, 51 Spring Street Vineyard Haven, MA 02568 Dear Ms. Bennett: 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 “any and all internal investigation reports, internal investigation documentation, and misconduct reports focused on [two named] former officers in the Tisbury Police Department. This request includes any change to department policies that came as a result of findings made regarding the relationship between [the two named former officers] while they were at the Tisbury Police Department.” The Town responded on September 7, 2021, providing a fee estimate. Objecting to the fees, Mr. Saltzberg 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). 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

Pam Bennett SPR21/2334 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). Current Appeal In his appeal petition, Mr. Saltzberg argues the following: What underpins the fee, what type of records have been found responsive to the request and the number of pages that make up the records simply aren’t provided. The [Town] has offered nothing to back up this fee. The fee is therefore arbitrary and unsupported. The [Town] must provide a description of the responsive records, must provide an estimated page count of the responsive records, and must explain why the estimated amount of time is necessary to prepare the records. The Town’s September 7th Response In its September 7, 2021 response, the Town provides “a fee estimate for employee search time.” The Town states the following: 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 [Mr. Saltzberg] will only be charged $25/hr. Considering the Town has less than 20,000 residents as of the last Decennial U.S. Census, [Mr. Saltzberg] will be charged for all hours of work associated with this request. . . . The total fee estimate (2 1/2 Hours * $25/hour) for the above-identified request is $62.50. Upon receipt of [Mr. Saltzberg’s] 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 [he has] requested. 950 CMR 32.06(2)(f). As noted above, [he] 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. . . The Town will provide a further basis if any records, are withheld or redacted in compliance with the Public Records Law, as noted above. Based on the Town’s response, I find it is unclear why the Town requires two and a half hours of time. The Town must provide further details regarding the tasks involved and what each task entails, 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).

Pam Bennett SPR21/2334 Page 3 September 21, 2021 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 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: Rich Saltzberg