Michael J. Maglothin v. Harvard, Town of - Town Clerk (SPR 20212387)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 20, 2021 SPR21/2387 Marlene Kenney Town Clerk Town of Harvard 13 Ayer Road Harvard, MA 01451 Dear Ms. Kenney: I have received your petition on behalf of the Town of Harvard (Town) requesting an extension of time to produce records and a waiver of statutory limits on fees that may be assessed in responding to the requests. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Town furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On July 22, 2021, Michael J. Maglothin requested “email records in Outlook Data File .pst format of the following transmissions dated from July 21, 2020 to present” and provided, among nine categories, the following two items: 1. From: [a named address]@harvard.ma.us To: [a named address]@harvard.ma.us 2. From [a named address]@harvard.ma.us To: [a named address]@harvard.ma.us. Previous Appeal This request was the subject of a previous appeal. See SPR21/2044 Supervisor of Records Determination (August 27, 2021). In my August 27th determination, I ordered the Town to clarify why it was not able to provide responsive records to parts 1 and 2 of Mr. Maglothin’s request. Subsequently, the Town submitted the petition which is the subject of this determination. Petitions for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: 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

Marlene Kenney SPR21/2387 Page 2 September 20, 2021 (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). In addition, “petitions seeking an extension of time to furnish copies of the requested records must be made by a records access officer within 20 business days following receipt of a request for public records, or within ten business days following the records access officer’s receipt of a determination by the Supervisor that a requested record constitutes a public record.” 950 C.M.R. 32.06 (4)(d). Petition to Assess Fees The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). 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). It is my determination that this request was not made for a commercial purpose.

Marlene Kenney SPR21/2387 Page 3 September 20, 2021 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. 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). Conclusion The Town submitted its petition on September 16, 2021, more than ten business days after receipt of the determination letter from this office for SPR21/2044. In light of the fact the Town has not demonstrated it submitted a timely petition, permission to charge more than $25 per hour and permission for an extension of time cannot be granted. 950 C.M.R. 32.06(4)(g). Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael J. Maglothin