Itai Vardi v. Douglas, Town of - Town Administrator (SPR 20230380)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 10, 2023 SPR23/0380 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. . .” 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 Appeals This request was the subject of previous appeals. See SPR22/2820 Determination of the Supervisor of Records (December 21, 2022) and SPR23/0131 Determination of the Supervisor of Records (February 6, 2023). In my February 6th determination, I ordered the Town to provide Mr. Vardi with a response to his request. On February 13, 2023, the Town responded. Unsatisfied with the Town’s response, Mr. Vardi petitioned this office and this appeal, SPR23/0380, was opened as a result. While this appeal was pending, the Town provided a supplemental response dated March 7, 2023 to this office. 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). 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 SPR23/0380 Page 2 March 10, 2023 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 February 13th and March 7th Responses On February 13, 2023, the Town provided a response. The Town stated that it took 32 hours to produce responsive records. The Town continues to provide a fee estimate of $800. The Town provided task logs of four Town employees. In Matthew Benoit’s task log, it took Mr. Benoit 5 hours to respond to the records request. The task log states Mr. Benoit “[c]reated subfolders on server for each category: CRG, NGrid, and Eversource…Sorted through emails in all mailboxes with criteria: @realcrg, @nationalgrid, @eversource converted each .msg file to .pdf individually and saved into new Locations re-named each .pdf file with date for organization[.]” These tasks took Mr. Benoit five hours. Lisa Freeman spent 4 hours scanning and .5 hours scanning and sorting electronic files. Bob Minarik’s task log notes that he spent 19.5 hours responding to the public records request. Matthew Wojcik spent 3 hours on “[e]mail sorting and printing.” In a supplemental response dated March 7, 2023 provided to this office, the Town states, “Mr. Vardi agreed to accept all the records from his refined request in one PDF.” The Town also states: Our invoices reflect the time it took for our staff to provide the requested files in PDF format as agreed upon (Attachment B). The invoices details clearly show the dates and times of work. No time was spent “sorting” as Mr. Vardi refers to it, there was no sorting to do other than queries into our email files to locate the requested records. The time spent was related to each record being printed and scanned into PDF. I do not believe the specific method of conversion into PDF is for the Secretary’s office to mandate since the parties had an agreement; once the requestor indicated the format was acceptable, we took a path to comply in good faith given the limited computer literacy of the staff member with the largest number of emails and attachments to produce, and our limited software assets. I am incredulous that anyone would think producing over 1,750 pages of documents—most of the

Matthew J. Wojcik SPR23/0380 Page 3 March 10, 2023 documents are one page—in 32 hours is somehow unreasonable. That translates to a page/document per minute for printing and scanning. Current Appeal In his appeal, Mr. Vardi argues: ... Mr. Minarik does not specify what tasks he was performing during the different indicated time periods. If Mr. Minarik was printing and scanning records during those times, the Town should have indicated that in their invoice. Mr. Minarik’s tasks were also unclear because the Town did not indicate until last night that each individual person was supposedly handling only their own responsive records. ... Mr. Wojcik states that there were more than 1,600 responsive records and that Mr. Minarik had “hundreds and hundreds” of records but does not further clarify how many records each person was handling or what tasks Mr. Minarik was performing during each time period. As a reminder, the Town originally stated that the 32 hours included time spent “locating, reviewing, segregating, and scanning the documents” but then later claimed that all 32 hours were used only to print and scan the records. Based upon the Town’s responses and Mr. Vardi’s appeal, it is unclear why it took a minute per page to print and scan the responsive records. In order to assist this office in determining the reasonableness of the fee estimate, the Town must further explain why it took a minute per page to print and scan the responsive records. This office encourages Mr. Vardi and the Town to continue to communicate in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). 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.

Matthew J. Wojcik SPR23/0380 Page 4 March 10, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Itai Vardi