Timothy A. Toomey v. Rowley, Town of - Town Clerk (SPR 20222162)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 29, 2022 SPR22/2162 Catherine McClenaghan Town Clerk Town of Rowley 139 Main Street P.O. Box 351 Rowley, MA 01969 Dear Ms. McClenaghan: I have received the petition of Timothy Toomey appealing the response of the Town of Rowley (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 25, 2022, Mr. Toomey requested “any and all information of authorized parking lots or parking areas in Rowley approved by the Planning Board or agent in the last 8 years.” Previous appeal This request was the subject of a previous appeal. See SPR22/2107 Determination of the Supervisor of Records (September 16, 2022). On September 16, 2022, this office closed the administrative appeal when it learned that the Town provided Mr. Toomey with a response dated September 12, 2022. Unsatisfied with the Town’s response, Mr. Toomey petitioned this office and this appeal, SPR22/2162, 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

Catherine McClenaghan SPR22/2162 Page 2 September 29, 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, Mr. Toomey asserts that “I received [the] email on day 11, therefore I should not be charged. Please ask them to provide documents free of charge.” In a further response from the Town dated September 28, 2022, a representative from the Town stated, “I have attached the original request which was date and time stamped August 26, 2022 – 8:20am. Therefore ten business days (excluding weekends and holidays) = September 12, 2022.” G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[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 under subsection (b).” Where Mr. Toomey submitted a public records request on August 25, 2022 and the Town provided a response on September 12, 2022, I find the Town has not complied with G. L. c. 66, § 10(e). Accordingly, the Town is ordered to provide Mr. Toomey with a response to his request in a manner consistent with 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 the response to this office at pre@sec.state.ma.us. Mr. Toomey may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Timothy Toomey