James R. Waugh v. Belmont, Town of - Town Clerk (SPR 20213066)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 6, 2021 SPR21/3066 Ellen O’Brien Cushman Town Clerk Belmont Town Hall 455 Concord Avenue Belmont, MA 02478 Dear Ms. O’Brien Cushman: I have received the petition of James R. Waugh appealing the response of the Town of Belmont (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 22, 2021, Mr. Waugh requested, “[a]ll Belmont, MA Covid-19 safety violation citations; filed from 3/10/2020 to the present; and, [a]ll Belmont, MA Covid-19 safety- related complaints filed from 3/10/2020 to present.” Previous appeal This request was the subject of a previous appeal. See SPR21/2048 Determination of the Supervisor of Records (August 23, 2021). The Town provided a response on August 24, 2021. Unsatisfied with the Town’s response, Mr. Waugh petitioned this office and this appeal, SPR21/3066, was opened 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

Ellen O’Brien Cushman, RAO SPR21/3066 Page 2 December 6, 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 August 24th Response On August 24, 2021, the Town responded to Mr. Waugh stating, “[t]hree hours and thirty minutes of staff time was required to search for and compile emails of all of the relevant Town staff for the parameters that were provided. This work has already been completed.” The search conducted of “all relevant Town staff” resulted in 1,039 emails. The Town explained it “performed a sample of this work to estimate time and cost. The sample results indicated that [the Town] can review, redact and select the specific exemptions for redaction, if any, and compile the documents determined appropriate to be disclosed, at a rate of approximately 63 emails per hour. Many of the records generated in this search need to be redacted under Exemption (c) as they contain information of a personal and/or medical nature. [The Town] estimated it will take approximately 16.5 hours to complete this work.” The Town also did a search of the Belmont Health Department’s database resulting 147 pages of documents. The Town explained it “performed a sample of this work to estimate time and cost. The sample results indicated that [the Town} can review, redact and select the specific exemptions for redaction, if any, and compile the documents determined appropriate to be disclosed, at a rate of approximately 75 pages per hour. Many of the records generated in this search need to be redacted under Exemption (c) as they contain information of a personal and/or medical nature. [The Town] estimated it will take approximately 2 hours to complete this work.” In addition, the Town further explained the estimate “will take a total of approximately 22 hours to complete the work cited above. [The Town] included the cost of the labor to perform this work by an employee entitled/ trained to do so, as permitted under the law, is $25/hour. Given that the first two hours are at no cost to the requester, the labor related cost for this request was calculated to be $500 (20 hours X $25/hour).” Based on the Town’s August 24th response, it is unclear why the Town requires the amount of time listed above to produce the requested records. The Town must provide further information on the details regarding the tasks involved, 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). The Town must clarify these matters, including the time that is needed to perform segregation and redaction as required by law. This office continues to encourage Mr. Waugh and the Town to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii) (a municipality

Ellen O’Brien Cushman, RAO SPR21/3066 Page 3 December 6, 2021 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 municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Mr. Waugh with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 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 Record cc: James R. Waugh Diana Ekman