Rich Saltzberg v. Tisbury, Town of - Town Clerk (SPR 20213346)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 7, 2022 SPR21/3346 Hillary Conklin Town of Tisbury 51 Spring Street P. O. Box 606 Vineyard Haven, MA 02568-0606 Dear Ms. 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 20, 2021, Mr. Saltzberg requested “. . . any and all internal or external investigation reports on [named individual’s] affair, including any investigations of [a named] Officer. . . .” Previous appeal This request was the subject of a previous appeal. See SPR21/2332 Determination of the Supervisor of Records (September 23, 2021). In my September 23rd determination, I ordered the Town to provide additional information regarding its fee estimate. The Town provided a further response on September 27, 2021. Unsatisfied with the Town’s response, Mr. Saltzberg petitioned this office and this appeal, SPR21/3346, was opened as a result. Fee estimates – 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 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 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

Hillary Conklin SPR21/3346 Page 2 January 7, 2022 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). The Town’s September 27th fee estimate In its September 27, 2021 fee estimate, the Town explains, “. . . 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 you will only be charged $25/hr. Considering the Town has less than 20,000 residents as of the last Decennial U.S. Census, you will be charged for all hours of work associated with this request.” The Town further explains, “. . . where records exist, some may be subject to withholding or redaction under applicable exemption(s) to the Public Records Law. See, e.g., G.L. c. 4, §7(26); 950 CMR 32.06(3). The [Town] expressly reserves the right to assert application of exemptions as appropriate, and, in accordance with G.L. c. 66, §10(b)(iv), nothing herein shall limit the [Town’s] ability to redact or withhold information in accordance with state or federal law.” The Town provides that “[t]he total fee estimate (5.5 Hours * $25/hour) for the above- identified request is $ 137.50. 1 hour to search and compile records from 3 locations @$25 per hour[;] 4.5 hours to look through approximately 3500 pages of paper documents/files in relation to the two employees. . . . This includes going through the files/papers segregation and reading through all files to locate any records that are responsive. 1 hr searching @$25 per hour[;] 4.5 hours segregating and reading 1500 [sic] pages @$25 per hour[;] Total 5.5 X $25 = $137.50[.]” In its response, the Town states that it “. . . expressly reserves the right to assert application of exemptions as appropriate, and, in accordance with G.L. c. 66, §10(b)(iv), nothing herein shall limit the [Town]’s ability to redact or withhold information in accordance with state or federal law.” The Town further states that it requires “4.5 hours segregating and reading 1500 pages @$25 per hour[.]” The Town is advised a municipality is not permitted to charge for time spent segregating records unless segregation is required by law or approved by the Supervisor of Records under a petition. See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). If the Town intends to segregate and/or redact information as required by law, the Town must state the applicable statute(s), if any.

Hillary Conklin SPR21/3346 Page 3 January 7, 2022 Additionally, the Town indicates that it will take “1 hour to search and compile records from 3 locations @$25 per hour[.]” Please be advised that the Town cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § l0(a); see G. L. c. 66, § l2; see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). The Town must clarify the tasks required to perform this search and compilation. Conclusion Accordingly, the Town is ordered to provide Mr. Saltzberg with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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 Records cc: Rich Saltzberg