William A. Moschella, Esq. v. Rowley, Town of - Town Clerk (SPR 20230122)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 3, 2023 SPR23/0122 Catie McClenaghan Public Records Access Officer Town of Rowley P.O. Box 351 Rowley, MA 01969 Dear Ms. McClenaghan: I have received the petition of William A. Moschella, Esq. appealing the fee estimate of the Town of Rowley (Rowley) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 18, 2022, Attorney Moschella requested “[a]ny and all authorization or approval by any member of any town board, department, or employee of the town of Rowley relating to authorizations concerning a right of way and/or easement concerning town property given to any entity for the past 8 years concerning [an identified property] in the town of Rowley.” The Town responded on January 3, 2023, stating that there were no records responsive to the request. Subsequently, Attorney Moschella renewed his request for the same information on January 6, 2023. On January 20, 2023, the Town provided a fee estimate. Objecting to the fees, Attorney Moschella petitioned this office and this appeal, SPR23/0122, 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 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

Catie McClenaghan SPR23/0122 Page 2 February 3, 2023 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 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). The Town’s January 20th Fee Estimate In its January 20, 2023 response, the Town provided a fee estimate of $670.52 to review 317 sets of minutes for an eight-year time period and stated as follows: [The Board of Selectmen’s Office] estimate[s] it will take approximately 5 minutes to read each set of minutes. The administrative pay rate is $23.61/hour. It will take approximately 26.4 hours to review all the minutes. 26.4 hours X $23.61 = $623.30. [The Board of Selectmen’s Office] estimate[s] it will take about two hours to review 8 years of files. 2 hours X $23.61 = $47.22. Total estimated amount is $623.30 + $47.22 = $670.52[.] Current appeal In his appeal petition, Attorney Moschella states that “[o]n date December 18, 2022 … a request was sent seeking information relating to information from the Town of Rowley…[.] The Town’s Clerk provide an incomplete response and failed to provide the complete records requested by its evasive response…[.] The town now tries to charge an excessive fee because of their failure to provide the records requested previously on December 18, 2022.” In an email dated January 24, 2023, a representative from the Town informed a staff attorney of the Public Records Division that “[w]hat Attorney Moschella failed to supply to you was his subsequent records request on January 6, 2023, asking for the same information, essentially restarting the clock. I opened a new file PPR 2023-02. The ten-day deadline for that request was January 23, 2023. Therefore, the response with a good faith estimate was delivered in a timely matter.”

Catie McClenaghan SPR23/0122 Page 3 February 3, 2023 Fees - Timeliness of response 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). Where it appears Attorney Moschella submitted a new public records request on January 6, 2023, I find the Town complied by responding to the request within 10 business days on January 20, 2023. In the Town’s fee estimate, it indicated that it “. . . will take approximately 26.4 hours to review all the minutes,” and “two hours to review 8 years of files.” Based on the Town’s response, it is unclear why the Town requires that amount of time to produce the requested records. Specifically, it is unclear how many pages exist to be reviewed and why it will take 5 minutes to review each set of minutes and two hours to review the files. Also, the Town has not stated whether it intends to use the time to segregate and redact the records, and if so, whether such segregation or redaction would be required by law. Please be advised, 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). Further, it is uncertain if the Town intends to assess a fee for the first two hours of employee time. 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). The Town must clarify these matters. For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee assessed in its January 20th estimate is consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Town is ordered to provide Attorney Moschella with a revised fee estimate for the request, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of the Town’s 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.

Catie McClenaghan SPR23/0122 Page 4 February 3, 2023 Sincerely, Manza Arthur Supervisor of Records cc: William A. Moschella, Esq.