Russell Williston v. Lancaster, Town of (SPR 20230158)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 8, 2023 SPR23/0158 Kathleen Rocco Records Access Officer Town of Lancaster 701 Main Street Lancaster, MA 01523 Dear Ms. Rocco: I have received the petition of Russell Williston appealing the response of the Town of Lancaster (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 12, 2023, Mr. Williston requested copies of invoices received by the Town from Town Counsel for the time period of January 2022 to January 2023. The Town provided a response on January 25, 2023, which included a fee estimate. Unsatisfied with the Town’s response, Mr. Williston petitioned this office, and SPR23/0158 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 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 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

Kathleen Rocco SPR23/0158 Page 2 February 8, 2023 approved by the Supervisor 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Town’s January 25th response In its January 25, 2023 response, the Town provided a fee estimate of $137.50 as follows: Employee search time: Title Hours Per Hour Cost Town Administrator (to 5 hours (to segregate and/or $25.00/hour review and segregate exempt redact any information information) protected by the attorney- client privilege or other exemptions from disclosure) Town Counsel (to review and .5 hours (to segregate and/or $25.00/hour segregate exempt redact any information information) protected by the attorney- client privilege or other exemptions from disclosure) TOTAL 5.5 Hours $137.50 The Town advised that “[t]he employee search and segregation time quoted above charged at the hourly rate of the lowest paid person capable of compiling the responsive records, in accordance with 950 CMR 32.07(2)(i). Such hourly rate shall not exceed $25/hour unless otherwise authorized by the Supervisor of Records. Please note that because the Town has less than 20,000 residents, pursuant to the last Decennial U.S. Census, you will be charged for all hours of work associated with this request … It is anticipated that the Town will make the documents available electronically and, as such, there will be no copying charges.” Current appeal In his appeal, Mr. Williston stated that “[t]he response from the town asserts that it will take the town administrator up to five hours to review 11 invoices, and then 30 minutes for town counsel to review the same invoices. It’s implausible that it will take the town administrator up to 10 times as long to review the same invoices. It’s also not clear why two reviews would be necessary.”

Kathleen Rocco SPR23/0158 Page 3 February 8, 2023 Based on the Town’s response, it is unclear why the Town requires the amount of time indicated to produce the requested records. Specifically, it is unclear why five (5) hours is necessary for the review of a total of eleven invoices and why a secondary review by Town Counsel is necessary. As such, the Town must provide further details regarding the fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, the Town indicates that it intends to redact the records under the attorney-client privilege or other exemptions. Based on the Town’s response, it is unclear whether the Town is charging for redactions that are not required by law. G. L. c. 66, § 10(d)(iv). See G. L. c. 66, §10(d)(ii); 950 C.M.R. 32.06(4). The Town must clarify. Conclusion Accordingly, the Town is ordered to provide a response to Mr. Williston, 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: Russell Williston