Charlie Spatz v. Holyoke, City of - Gas & Electric Department (SPR 20212367)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 21, 2021 SPR21/2367 John J. Ferriter, Esq. Holyoke Gas & Electric Department 99 Suffolk Street Holyoke, MA 01040 Dear Attorney Ferriter, On September 15, 2021, I received your petition on behalf of the Holyoke Gas & Electric Department (Department) seeking a waiver of statutory limits on fees that may be assessed in responding to a request for public records. G. L. c. 66, § 10(d)(iv). As required by law, the Department furnished a copy of its petition to the requestor, Charlie Spatz. Id. On September 10, 2021, Mr. Spatz requested certain communications relating to the Gas Superintendent. Petitions to assess fees 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 (Supervisor) 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). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. 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

John J. Ferriter, Esq. SPR21/2367 Page 2 September 21, 2021 Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates 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 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). Current Petition In its September 15th pettion, the Department states, “[t]his is a formal petition for a Waiver of Fee Limits under 950 CMR 32.06. Holyoke recently received the below request for correspondence that contain competitive pricing and other commercially protected information, as well as confidentiality provisions common to the utility industry. Holyoke consistently charges for records to not burden its ratepayers with costs not related to utility supply.” The Department further contends that “[t]he nature of the confidential correspondence in question and the communication with utility counterparties regarding the confidentiality requirements compels Holyoke to utilize a Superintendent who is paid $75.13 per hour. To the extent possible, the time of an Administrative Assistant will be utilized at an actual hourly rate of $30.58.” Although the Department states the responsive records “…contain competitive pricing and other commercially protected information,” it is unclear why the request could not be prudently completed without a fee in excess of $25 per hour.

John J. Ferriter, Esq. SPR21/2367 Page 3 September 21, 2021 Conclusion In light of the above, I find the Department has not met its burden to explain how the request could not prudently be completed without fees in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Further, this office encourages the Department and the Mr. Spatz to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii)(an agency or 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 agency or municipality to produce records sought more efficiently and affordably). Any fee estimate by the Department must be in compliance with this determination, the Public Records Law, and its Access Regulations. Sincerely, ,, ·-cr .n 11 - - . - ~ ~ Rebecca S. Murray Supervisor of Records cc: Charlie Spatz