Debbie Conant v. Westwood, Town of - Clerk's Office (SPR 20212684)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 27, 2021 SPR21/2684 Patrick J. Ahearn, Esq. Town Counsel Town of Westwood 580 High Street Westwood, MA 02090 Dear Attorney Ahern: I have received the petition of Debbie Conant appealing the response of the Town of Westwood (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 6, 2021, Ms. Conant requested “[t]wo RFP’s + Responses for Town Council position.” Previous Appeals This request was the subject of previous appeals. See SPR21/1188 Supervisor of Records Determination (May 24, 2021); SPR21/2094 Supervisor of Records Determination (August 31, 2021). In my August 31st determination, I ordered the Town to clarify its fee estimate. Subsequently, the Town provided a revised fee estimate on September 10, 2021. Objecting to the fees, Ms. Conant 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, 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

Patrick J. Ahearn, Esq. SPR21/2684 Page 2 October 27, 2021 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). The Town’s June 7th and September 10th Fee Estimates In its June 7, 2021 fee estimate, the Town states: Specifically, the RAO requested payment of $62.50 for 30 minutes to gather the electronic documents by the Purchasing Director and for 2 hours of [Town Counsel’s] time to review the files. The cost that is being requested is $25.00 per hour times 2.5 hours equaling $62.50. [Town Counsel] asked to review them in paper form and [the Town] did not request payment for the hour it took to print and assemble the documents via hard copy as that was [Town Counsel’s] preference. In the September 10, 2021 fee estimate, the Town Counsel states that he is “the only employee who can review the documents in question to make sure that non-public information is not released.” Town Counsel confirms that his “hourly rate is more than $25.00 per hour.” Town Counsel goes on to explain the following: The packet [of responsive records] for review is 1.5 inches high. [Town Counsel] estimated there are approximately 300 documents that need to be reviewed. Mathematically, if [he] can average 25 seconds per page then [he] would need about 125 minutes, or 5 minutes over 2 hours. [Town Counsel’s] experience is that at the beginning of each submission it will be slower than that estimate and as [he] become[s] familiar with the submission, [he] should be able to get down to that performance level. . . . [Town Counsel] will need to read each one and determine if there are any exemptions that might apply. [His] usual process [is] to do a review and flag any document that appears or may have an exemption. After the first review [he] will then go back and more closely review those flagged documents, checking materials carefully against the criteria for an exemption and the legal basis for withholding the information. In the September 10th, as in the June 7th fee estimate, Town Counsel does not identify the information that is required by law to be segregated or redacted in the records. He contends that he is “not able to do that at this time because there are some 20 legal reasons to withhold material, and asking to identify what ones apply before review would be even more speculative [than the previous fee estimates].” He further asserts that he is “unable to identify what areas of law apply to a claimed exemption that [he has] not identified.”

Patrick J. Ahearn, Esq. SPR21/2684 Page 3 October 27, 2021 As noted above, “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.” 950 C.M.R. 32.07(2)(d). Where the Town has not indicated whether the segregation and redaction is required by law, and no petition has been approved under 950 C.M.R. 32.06(4)(g) and (h), permission cannot be granted to assess fees for segregation and redaction of the responsive records. Please note, however, this does not preclude the Town from charging for the time required to search for, compile the records and perform segregation and redaction that is required by law. For the reasons discussed above, I find the Town must revise its fee estimate or demonstrate how it is in compliance with the Public Records Law. Conclusion Accordingly, the Town is ordered to provide Ms. Conant with a response to her 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: Debbie Conant