Michael J. Maglothin v. Harvard, Town of - Town Clerk (SPR 20220052)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 24, 2022 SPR22/0052 Marlene Kenney Town Clerk Town of Harvard 13 Ayer Road Harvard, MA 01451 Dear Ms. Kenney: I have received the petition of Michael Maglothin appealing the response of the Town of Harvard (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 22, 2021, Mr. Maglothin requested nine categories of emails. Previous Appeals This request was the subject of previous appeals and a petition. See SPR21/2044 Supervisor of Records Determination (August 27, 2021); SPR21/2387 Supervisor of Records Determination (September 20, 2021); SPR21/2377 Supervisor of Records Determination (September 24, 2021); SPR21/3174 Supervisor of Records Determination (December 17, 2021). In my September 20th determination, I found that the Town could not charge more than $25 per hour in fees. Additionally, in my December 17th determination, I closed SPR21/3174 based on the Town’s supplemental response, which included a fee estimate. Unsatisfied with the Town’s response and objecting to the fees, Mr. Maglothin appealed, and this case was opened as a result. Fee Estimate – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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, 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

Marlene Kenney SPR22/0052 Page 2 January 24, 2022 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). Current Appeal In his appeal petition, Mr. Maglothin contends that “the Town is still obligated to . . . meet the disclosure presumption . . . demonstrate the application of an exemption for withholding items . . . [and] provide a good faith estimate in its entirety for items 1 through 9, and not through a more expensive approach of creating printouts of data when originally requested electronic format will suffice.” I note that subsequent to the opening of this appeal, both the Town and Mr. Maglothin emailed this office reiterating their positions on these matters. The Town’s December 17th Fee Estimate In its December 17, 2021 response, the Town provides two separate fee estimates. For Item #3, the Town provides the following fee estimate The lowest paid person capable of complying with this request receives an hourly rate of $29.96. The Town will not charge fees in excess of the maximum hourly rate allowed of $25.00 per hour. Email Extraction: 3.0 hours @ $25.00/per hour = $ 75.00 Research and Compilation: 19.0 hours @ $25.00/per hour = $ 475.00 Scanning & Reproducing: 18.5 hours @ $25.00/per hour = $ 462.50 Copies: 20,000pages @ $0.05/per page =$1,000.00 $2,012.50 For Items #1 through #6 of Mr. Maglothin’s modified October 6, 2021 request, the Town provides the following information: The Town will not charge fees in excess of the maximum hourly rate allowed of $25.00 per hour. Research and Compilation: 0.50 hours @ $20.25/per hour = $ 10.13

Marlene Kenney SPR22/0052 Page 3 January 24, 2022 Research and Compilation: 14.75 hours @ $25.00/per hour = $368.75 Scanning and Reproducing: 0.25 hours @ $20.25/per hour = $ 5.06 Scanning and Reproducing: 4.25 hours @ $25.00/per hour = $106.25 Copies: 1,815 pages @ $0.05/ per page = $ 90.75 $ 580.94 Please note that under the Public Records Law, a municipality may assess fees to search for, compile, segregate, redact or reproduce records. See 950 CMR 32.07 (2)(i). Consequently, it is unclear what tasks the Town is referring to as “research” in its fee estimate. Further, based on the Town’s response, it is unclear why it requires the amounts of time indicated above for compilation and reproduction. The Town must provide further 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). Additionally, the Town must indicate whether any segregation and redaction is required by law. Preferred Format A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). Accordingly, it is unclear why the Town has included fees for copies in its fee estimate. The Town must clarify this. Conclusion For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Please note that where the Town has yet to provide records, I am unable to opine on any withheld records or the applications of any exemptions the Town may cite at this time. Accordingly, the Town is ordered to provide Mr. Maglothin with a response to the 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.

Marlene Kenney SPR22/0052 Page 4 January 24, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Maglothin