Patrick D. McPhee v. Ashby, Town of - Town Administrator (SPR 20222973)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 12, 2023 SPR22/2971; SPR22/2972; SPR22/2973; SPR22/2974 Michael Bussell Interim Town Manager Town of Ashby 895 Main Street Ashby, MA 01431 Dear Mr. Bussell: I have received the petition of Patrick McPhee appealing the response of the Town of Ashby (Town) to requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 25, 2022, Mr. McPhee requested the following records: [1] …any/all information, the Town of Ashby [Select Board] receives for the meeting on November 22, 2021… [2] …emails (sent/received), attachments, text send/received that the Town of Ashby receives or used for meeting on November 22, 2021[.] On November 25, 2022, Mr. McPhee requested the following records: [1] …any/all information, the Town of Ashby [Select Board] receives for the meeting on November 10, 2021… [2] …emails (sent/received), attachments, text send/received that the Town of Ashby SelectBoard receives or uses for meeting on November 10, 2021[.] On November 25, 2022, Mr. McPhee requested the following records: [1] …any/all information, the Town of Ashby [Select Board] receives for the meeting on November 19, 2021… [2] …emails (sent/received), attachments, text send/received that the Town of Ashby SelectBoard receives or used for meeting on November 19, 2021[.] 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

Michael Bussell SPR22/2971; SPR22/2972; Page 2 SPR22/2973; SPR22/2974 January 12, 2023 On November 26, 2022, Mr. McPhee requested the following records: [1]…any/all information, the Town of Ashby [Select Board] receives for the meeting on May 25, 2022… [2]…emails (sent/received), attachments, text send/received that the Town SelectBoard receives or used for meeting on May 25, 2022… [3] Item 11. Discuss proposal from Solect Energy Development, LLC to lease town owned land on Foster Road for solar electrical generation facility and battery storage system…. Previous Appeals These requests were the subjects of previous appeals. See SPR22/2915; SPR22/2916; SPR22/2917 Determination of the Supervisor of Records (January 4, 2023) and SPR22/2918 Determination of the Supervisor of Records (January 4, 2023). In my January 4th determinations, I closed the appeals when I learned the Town had provided a response dated December 22, 2022. Unsatisfied with the Town’s response, Mr. McPhee petitioned this office and these appeals, SPR22/2971, SPR22/2972, SPR22/2973, and SPR22/2974, were 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, 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 December 22nd Response In its December 22, 2022 response, the Town provides a fee estimate of $3,325.00 for 11 public records requests submitted by Mr. McPhee. The Town also states that “[t]he information for Executive Sessions on 11/22/2022 & 12/9/2022 is not available because the matters have been resolved.”

Michael Bussell SPR22/2971; SPR22/2972; Page 3 SPR22/2973; SPR22/2974 January 12, 2023 The Town states that regarding the requests for the records involving the November 22, 2021 Select Board meeting, which were addressed in SPR22/2915, it will take 32 hours at a rate of $25/hour to produce responsive records. The Town states that regarding the requests for the records involving the November 10, 2021 Select Board meeting, which were addressed in SPR22/2916, it will take 16 hours at a rate of $25/hour to produce responsive records. The Town states that regarding the requests for the records involving the November 19, 2021 Select Board meeting, which were addressed in SPR22/2917, it will take 16 hours at a rate of $25/hour to produce responsive records. The Town states that regarding the requests for the records involving the May 25, 2022 Select Board meeting, which were addressed in SPR22/2918, it will take 16 hours at a rate of $25/hour to produce responsive records. 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. McPhee submitted three public records requests on November 25, 2022 and one on November 26, 2022, and the Town provided a response on December 22, 2022, I find it is unclear whether the Town complied with G. L. c. 66, § 10(e). Specifically, the Town must demonstrate whether it provided a response to Mr. McPhee’s requests under G. L. c. 66, § 10(b) within 10 business days of receipt of the requests. Conclusion Accordingly, the Town is ordered to provide Mr. McPhee with a response to the request, provided in a manner consistent with this order, 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 this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Patrick McPhee