Stanley Mazurczyk v. Chelmsford, Town of - Town Clerk (SPR 20222829)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 16, 2022 SPR22/2829 Patricia Dzuris Town Clerk Town of Chelmsford 50 Billerica Road Chelmsford, MA 01824 Dear Ms. Dzuris: On December 9, 2022, this office received a petition from Paul J. Haverty, Esq., of Blatman, Bobrowski, Haverty & Silverstein, LLC, on behalf of the Town of Chelmsford (Town) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding the Town furnished a copy of the petition to the requestor. Id. On November 25, 2022, Mr. Mazurczyk requested all October, 2022 Verizon invoices. In an email dated December 15, 2022, Mr. Mazurczyk objected to the petition. Petition to Assess Fees 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 (Supervisor) 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). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve an agency’s petition to allow the agency to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. 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

Patricia Dzuris SPR22/2829 Page 2 December 16, 2022 The second prong of the test is whether the fee represents an actual and good faith representation by the agency to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). 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) 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 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). 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). Current Petition In its December 8th petition, the Town asserts: Because these records include phone numbers of public safety officers, including the detailed call history of [a] school resource officer…significant time and effort is required to identify phone numbers that either are required to be redacted pursuant to G. L. c. 119, §§ 38, 60, 60A and 65 to be redacted, and as a request pursuant to 950 CMR 32.06(4) to allow the Town to charge a fee for the redactions pursuant to G. L. c. 4, § 7(26)(c) and (f).

Patricia Dzuris SPR22/2829 Page 3 December 16, 2022 This work required to complete the redactions to this Verizon bill includes time for the Town staff to review the bills and redact all of the phone numbers of public safety officers. This work also requires that [an identified individual] review her detailed call log consisting of approximately two hundred (200) entries in order to identify the parties involved in both incoming and outgoing calls. Once the identity of such callers have been established, additional time is required to have [an identified individual] review the list of callers with Town Counsel to determine whether or not redactions are required. I find the Town has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, I find the Town has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for segregation and redaction. Further, I encourage the parties to communicate further to enable the Town to provide records in an efficient and affordable manner. When preparing a fee estimate for the provision of the requested records, the Town is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary and how the redactions are required by law. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Town must provide a response to Mr. Mazurczyk within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Mazurczyk may appeal the Town’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Stanley Mazurczyk Paul J. Haverty, Esq.