Rich Saltzberg v. Tisbury, Town of (SPR 20212452)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 7, 2021 SPR21/2452 J. Hillary Conklin Town Clerk Town of Tisbury P.O. Box 1239 51 Spring Street 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 “any and all internal investigation reports and internal investigation documentation focused on . . . a former officer in the Tisbury Police Department.” The Town responded on September 7, 2021, and again on September 27, 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

J. Hillary Conklin SPR21/2452 Page 2 October 7, 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 Petition In his appeal petition and in an email to this office on September 27, 2021, Mr. Saltzberg “contends that fee is excessive, that the Town has presented an exaggerated page count, and that a police chief, a police lieutenant, and a human resources officer in no way constitute the ‘lowest paid employees capable of searching, and segregating.’” Mr. Saltzberg further contends that at least some of the responsive records should have been included in the response to a previous request, and suggests that “the Town should add up those pages and the time estimated to prepare them and then subtract that from its records estimate.” The Town’s Fee Estimate In its September 7, 2021 response, the Town provides “a fee estimate for employee search time, as permitted by law.” In its September 27, 2021 response, the Town explains 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. . . . After a review of its records, the [Police] Department has records responsive to [Mr. Saltzberg’s] request. The total fee estimate ( 8 1/4 Hours * $25/hour) for the above- identified request is $206.25. 1 ½ hour to search and compile records from 3 locations @$25 per hour 6 ¾ hours to look through over 5000 pages of paper documents/files in relation to [the named former police officer]. This includes going through the files/papers segregation and reading through all files to locate any records that are responsive. 1 ½ hr searching @$25 per hour 6 ¾ hours segregating and reading over 5000 pages @$25 per hour Total 8 ¼ X $25 = $206.25 In light of the Town’s September 27th response, I find the Town has met its burden to explain how it has provided a reasonable fee estimate for the production of records responsive to this request. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record).

J. Hillary Conklin SPR21/2452 Page 3 October 7, 2021 Conclusion As set forth above, I find the Town has met its burden in responding to Mr. Saltzberg’s request at this time. Any revision to the request would result in the requirement to issue a revised estimate. Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Rich Saltzberg