Janice Loux v. Williamstown, Town of - Office of the Town Clerk (SPR 20220672)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 30, 2022 SPR22/0672 Nicole Beverly Town Clerk Town of Williamstown 31 North Street Williamstown, MA 01267 Dear Ms. Beverly: I have received the petition of Janice Loux appealing the response of the Town of Williamstown (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 7, 2022, Ms. Loux requested twelve categories of communication records from various Town departments and officials. The Town responded on March 21, 2022. Unsatisfied with the Town’s response, Ms. Loux petitioned this office and this appeal, SPR22/0672, was opened as a result. Fee Estimates 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 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

Nicole Beverly SPR22/0672 Page 2 March 30, 2022 petition under G. L. c. 66, § 10(d)(iv). -Se-e 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 March 21st Response In its March 21, 2022 fee estimate, the Town stated: Please note, each of your requests contains “boilerplate” language seeking “any and all records”, including but not limited to “memoranda, emails, all attachments contained in any email, notes, text messages, and telephone records.” Such boilerplate language greatly expands the scope of each request and the associated employee time necessary to respond to these requests, to the point where virtually every town office and department would need to conduct searches for responsive records. [The Town] would not normally construe the use of this boilerplate language as signaling an intention that the Town actually conduct such expansive searches, as the fee estimate for such searches would be quite high. Instead, [the Town] has attempted to determine the focus of each request, and the fee estimate provided below is based upon that more focused interpretation of your otherwise broad requests. However, [the Town] has also included a second fee estimate, based upon the broader searches that would be necessary to identify and locate any additional responsive records, such as “…emails, … notes, text messages, and telephone records.” Fee estimate for responsive records not including “to memoranda, emails, all attachments contained in any email, notes, text messages, and telephone records”: 4 hours x $25/hour (hourly rate for Acting Police Chief exceeds $25/hour) = $100.00 Total Fee estimate for more expansive searches: 4 hours x $25/hour (Acting Police Chief; hourly rate exceeds $25/hour) = $100.00 20 hours (IT staff/vendor; hourly rate exceeds $25/hour) = $500.00 5 hours Interim Town Manager (Interim Town Manager; hourly rate exceeds $25/hour) = $125.00 5 hours (Assistant to the Town Manager; hourly rate exceeds $25/hour) = $125.00 Total fee for expanded services - $850.00

Nicole Beverly SPR22/0672 Page 3 March 30, 2022 Current Appeal In her current appeal, Ms. Loux stated: First, the Town's requirement that I pay $850.00 violates M.G. L. c. 66, § 10(b)…the records I seek are specific and easy to locate in the digital era… Second, M.G. L. c. 66, § 10(d) allows a municipality to assess a reasonable fee for producing a public record except for those freely available for public inspection. The records I seek to obtain are freely available documents to anyone who legally solicits to examine them, contrasted with material otherwise protected by a statutory exemption to the Public Records Law. Third, M.G. L. c. 66, § 10(a) prohibits the Town from charging me a fee for the time it takes to search for responsive records based on the organization and management of its records. The Town must maintain and keep public records in a way that allows access by a requestor, as these records are subject to mandatory disclosure upon request. Fourth, the Town has indicated my request contains "boilerplate" language for my request. The language used in my request is legal, and the Town's attempt to correct my request can be considered an attempt to persuade me from my lawful right to obtain records… In light of the above, I find it unclear how the Town determined both of its fee estimates. Specifically, the Town does not explain how it arrived at each time estimate for its Police Chief, IT Department, Interim Town Manager, and the Assistant to the Town Manager, respectively. The Town is reminded that it must describe the tasks involved in searching, segregating, redacting, and refiling the records responsive to Ms. Loux’s request. The Town must clarify these issues. This office encourages Ms. Loux and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a -- municipality 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).

Nicole Beverly SPR22/0672 Page 4 March 30, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Janice Loux