Andrew Quemere v. Chilmark, Town of - Town Administrator (SPR 20220929)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 4, 2022 SPR22/0929 Timothy R. Carroll Town Administrator Town of Chilmark 400 Middle Road Chilmark, MA 02535 Dear Mr. Carroll: I have received the petition of Andrew Quemere appealing the response of the Town of Chilmark (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 23, 2022, Mr. Quemere requested police internal affairs records for an identified individual. The Town responded on March 23, 2022 and April 4, 2022. Unsatisfied with the responses, Mr. Quemere petitioned this office and this appeal, SPR22/0929, was opened as a result. Fees -Municipalities If there are any fees associated with a response a written, good faith estimate must be · provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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, 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 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

Timothy R. Carroll SPR22/0929 Page 2 May 4, 2022 per hour. Id. However, municipalities may charge more than $25 per how 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). In its response, the Town stated, “… if a response to a public records request requires more than 2 hours of employee time, a municipal RAO may assess a fee of the hourly rate of the lowest paid employee with the skills necessary to search for, compile, segregate, redact or reproduce a requested record. However, the fee shall not exceed $25 an hour, unless approved by the Supervisor of Records.” The Town further asserted, “I am waiting to hear from the department head how much time it will take to research, locate, and scan the documents you are requesting. I don’t expect that it will take more than 2 hours. Are you requesting we proceed if the estimate I receive from the department head is 2 hours or less?” Current appeal In his appeal, Mr. Quemere asserted, “[t]he town indicated that it would either provide the records or a fee estimate, but it never provided additional information and more than 10 business days have elapsed.” Fees - Timeliness of response If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records ----- custodian must provide the responsive records. The Town is advised that under the Public Records Law, “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days in compliance with G. L. c. 66 §10(e) and 950 C.M.R. 32.06(2)(c). It is unclear if the Town’s responses met the requirements under G. L. c. 66, § 10(b) to assess a fee for the requested records. Pursuant to the law, the written response must be made via first class or electronic mail and must: (i) confirm receipt of the request; (ii) identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves; (iii) identify the agency or municipality that may be in possession, custody or control of the public record sought, if known; (iv) identify any records, categories of records or portions of records that the agency or.

Timothy R. Carroll SPR22/0929 Page 3 May 4, 2022 municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based, provided that nothing in the written response shall limit an agency’s or municipality’s ability to redact or withhold information in accordance with state or federal law; (v) identify any public records, categories of records, or portions of records that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought; (vi) identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein; (vii) 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 agency or municipality to produce records sought more efficiently and affordably; (viii) include an itemized, good faith estimate of any fees that may be charged to produce the records; and (ix) include a statement informing the requestor of the right of appeal to the supervisor of records under subsection (a) of section 10A and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court under subsection (c) of section 10A. G. L. c. 66, § 10(b). The Town is advised in order to assess a fee for the requested records, it must demonstrate it provided a response in compliance with G. L. c. 66, § 10(b). The Town must clarify this. Conclusion Accordingly, the Town is ordered to provide Mr. Quemere with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 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.

Timothy R. Carroll SPR22/0929 Page 4 May 4, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere