Joanne Demack-Harding v. Abington, Town of - Office of the Town Manager (SPR 20220035)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 13, 2022 SPR22/0035 Scott Lambiase Records Access Officer Town of Abington 500 Gliniewicz Way Abington, MA 02351 Dear Mr. Lambiase: I have received the petition of Joanne Demack-Harding appealing the response of the Town of Abington (Town) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On November 9, 2021, Ms. Demack-Harding requested, “all group text messages between Town Selectmen and the Town Manager, all text messages sent between themselves, individually, or in a group with the Town Manager, all text messages sent from the Town Manager to the Selectmen in group form or individually from April 1st 2021 through the date you have received my request…” Previous Appeal The records sought were the subject of a previous appeal. See SPR21/3134 Supervisor of Records Determination (December 7, 2021). There, I ordered the Town to provide a response to Ms. Demack-Harding’s request within the statutory timeframe of G. L. c. 66, § 10(b)(vi). The Town provided a response on December 21, 2021. Unsatisfied with the Town’s response, Ms. Demack-Harding petitioned this office and this appeal, SPR22/0035, 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). 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

Scott Lambiase SPR22/0035 Page 2 January 13, 2022 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 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 Department’s December 21st Fee Estimate In its December 21, 2021 fee estimate, the Town stated, “based on the Town's good faith estimate, a $400.00 fee will be required which is based on an estimated time of sixteen (16) hours at twenty-five dollars ($25.00) an hour to complete your request(s).” However, it is unclear why the Town requires sixteen hours to provide the requested records. The Town must clarify the details regarding the tasks involved and what each task entails, 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). Further, under the Public Records Law, 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. G. L. c. 66, § 10(d)(iii). However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor under a petition under G. L. c. 66, § 10(d)(iv). Consequently, the Town must explain whether its hourly rate is that of the lowest paid employee with the necessary skill. Conclusion Accordingly, the Town is ordered to provide Ms. Demack-Harding 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.

Scott Lambiase SPR22/0035 Page 3 January 13, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Joanne Demack-Harding