Casey G. Fleming v. Oxford, Town of - Town Clerk (SPR 20213242)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 21, 2021 SPR21/3242 Michelle A. Jenkins Town Clerk Town of Oxford 325 Main Street Oxford, MA 01540 Dear Ms. Jenkins: I have received the petition of Casey G. Fleming appealing the response of the Town of Oxford (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 19, 2021, Mr. Fleming requested “any records requests which were responded to by providing any town orders related to 59 Quobaug avenue, or the MGL 258 notice of claims related to 59 Quobaug avenue.” On December 7, 2021, the Town provided Mr. Fleming with a fee estimate. Objecting to the Town’s fee estimate, Mr. Fleming petitioned this office and this appeal, SPR21/3242, 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). 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 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

Michelle A. Jenkins SPR21/3242 Page 2 December 21, 2021 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 December 7th fee estimate In its December 7, 2021 fee estimate, the Town stated “that it will cost a minimum of $63.67 to comply with [Mr. Fleming’s] request.” That amount is broken down as follows: Employee Title of *Hourly Rate Estimated Estimated Total Time Personnel Employee Cost of Estimated Cost Copies Cost 2 hours Assistant $24.86/hr. $49.72 $13.95 $63.67 Town Clerk Mr. Fleming appeals “. . . on the basis that a fee cannot be charged because the town did not respond within 10 business days; MGL c. 66. s. (10)(e).” G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” 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). Mr. Fleming’s original request to the Town was submitted at 5:57pm on Friday November 19, 2021. Where Mr. Fleming submitted a request past 5pm on November 19th, the receiving date for the Town of the request would be Monday November 22, 2021. Thus, I find the Town provided a response to Mr. Fleming within ten business days after receipt by the Town of a request for public records. 950 C.M.R. 36.06(4)(b). Conclusion Accordingly, I will consider this administrative appeal closed. If there are unresolved issues with respect to the fee estimate, Mr. Fleming may appeal the substance of the fee estimate within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Casey G. Fleming