Patrick Higgins v. Swansea, Town of - Town Administrator (SPR 20220839)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 25, 2022 SPR22/0839 Mallory Aronstein Town Administrator Town of Swansea 81 Main Street Swansea, MA 02777 Dear Ms. Aronstein: I have received the petition of Patrick Higgins appealing the response of the Town of Swansea (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 19, 2022, Mr. Higgins requested, “emails and texts sent or received on a town-issued device or any other correspondence from [a list of certain individuals] from Dec. 1, 2021 to Mar. 20, 2022.” Previous Appeal and Petitions This request was the subject of a previous appeal from the requestor and petitions from the Town. See SPR22/0694 Supervisor of Records Determination (March 28, 2022); SPR22/0694 Supervisor of Records Determination (April 6, 2022); SPR22/0689 Supervisor of Records Determination (April 6, 2022). Please note that the Town was previously granted permission for a time extension of 30 business days, permission to assess a fee limited to $71.84 per hour, and permission to charge for time spent segregating and redacting the requested records. In my April 6th determination for SPR22/0689, I ordered the Town to revise or provide further explanation of its fee estimate. Subsequently, the Town responded by email on April 8, 2022, providing a revised fee estimate. Objecting to the fees, Mr. Higgins again appealed, and this case was opened as a result. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). 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

Mallory Aronstein SPR22/0839 Page 2 April 25, 2022 Municipalities may not assess a fee for the first 2 (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 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 April 8th Fee Estimate In its April 8, 2022 response (including a letter dated April 4, 2022), the Town provides a revised fee estimate. The Town explains that it is charging “$71.84 per hour at 6 estimated search hours (which total hours are exclusive of the first 2 hours, for which there is no charge by law), for a total of $431.04.” The Town further explains “that the purpose of this search time is to compile the requested emails and texts from various sources. In particular, downloading, printing and scanning numerous text messages from various devices into a producible format will take significant time.” Additionally, the Town provides the following figures for segregation and redaction time: “$71.84 at 167 estimated segregation hours and 20 estimated redaction hours, for a total of $13,434.08.” The Town further explains that “the revised segregation-hours estimate reflects this rate for the estimated 20,000 pages of communications that [Mr. Higgins has] requested.” In light of the Town’s April 8th response, I find the Town has met its burden to explain how it has provided a reasonable fee estimate for the production of records responsive to this request which yields numerous records. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). In its correspondence with Mr. Higgins, the Town has noted multiple times that its estimated fees could be reduced if Mr. Higgins were to narrow the scope of his request, to include specifying a particular subject or topic for the search. This office encourages Mr. Higgins and the Town to communicate directly 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 the records sought more efficiently and affordably).

Mallory Aronstein SPR22/0839 Page 3 April 25, 2022 Conclusion As set forth above, I find the Town has met its burden in responding to Mr. Higgins’ request at this time. Any revision to the request would result in the requirement to issue a revised fee estimate. Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Patrick Higgins