Itai Vardi v. Douglas, Town of - Town Administrator (SPR 20230131)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 6, 2023 SPR23/0131 Matthew J. Wojcik Town Administrator Town of Douglas 29 Depot Street Douglas, MA 01516 Dear Mr. Wojcik: I have received the petition of Itai Vardi, of the Energy and Policy Institute, appealing the response of the Town of Douglas (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 1, 2022, Mr. Vardi requested “[a]ny and all emails to and from (including CCs and BCCs) each of the following: [4 identified individuals] and any or all of the following 3 emails domains: [3 identified email domains.]” On November 4, 2022, Mr. Vardi modified his request and stated, “[a]s to [an identified company’s] emails, I am only interested in the ones relating to the proposed gas line extension and electrification[.]” Previous Appeal This request was the subject of a previous appeal. See SPR22/2820 Determination of the Supervisor of Records (December 21, 2022). In my December 21st determination, I ordered the Town to provide Mr. Vardi with a response to his request. On January 5, 2023 and January 17, 2023, the Town responded. Unsatisfied with the Town’s responses, Mr. Vardi petitioned this office and this appeal, SPR23/0131, 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 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

Matthew J. Wojcik SPR23/0131 Page 2 February 6, 2023 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 January 5th Fee Estimate and January 17th Responses On January 5, 2023, the Town provided a revised fee estimate of $800.00. The Town asserts that “[h]ours were logged per employee for time spent locating, reviewing, segregating, and scanning the documents.” The Town states that 32 hours at $25.00 per hour equals $800.00. On January 17, 2023, the Town states “[a]ll of the time billed was for producing (printing) and scanning the requested documents.” In a supplemental response dated January 17, 2023, the Town states: There’s somewhere between 1,500 and 1,750 pages of material here. You asked for emails. To download and save the emails as PDF is actually more time consuming in Outlook for my group of varying IT talents than printing and scanning on a high speed scanner. Further, you asked for attachments, which were much easier to print as each email was dealt with, than to organize into an electronic PDF. We don’t have Acrobat. Current Appeal In his appeal, Mr. Vardi argues: The Town’s stated fee continues to be unreasonable, however, where it is potentially still charging for segregation and it is quoting an unreasonable number of hours. First, just as the Town cannot charge for redacting records where it failed to submit a petition to this office for approval and redaction is not required by law, the Town should not be allowed to charge for time spent segregating records….The recent invoice from the Town does not include charges for time spent redacting but d[o]es include charges for time spent segregating records. The Town has since indicated that it did not charge for time spent segregating records…but if the invoice was correct in stating that the Town did charge for segregation, those hours should be deducted.

Matthew J. Wojcik SPR23/0131 Page 3 February 6, 2023 Additionally, regardless of whether the Town charged for time spent segregating records, the Town’s estimate of 32 hour is not reasonable, and the total calculated fee is therefore also not reasonable....[T]he Town later stated that all 32 hours were used only to print and scan the records….The Town informed me that there were between 1,500 and 1,750 pages of responsive emails. Thirty-two hours amounts to 1,920 minutes, which means that the Town would have spent more than a minute just to print and scan each page. This estimate seems both unlikely and unreasonable. Although the Town has estimated that the process of responding to the records request will take 32 hours of employee time to produce the responsive records, it is unclear why it will take this many hours. The Town must explain how many hours are dedicated to each task involved in producing the responsive records. For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Town is ordered to provide Mr. Vardi 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: Itai Vardi