Kimberly Kenney v. Pembroke, Town of - Office of the Town Manager (SPR 20231039)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 31, 2023 SPR23/1039 William Chenard Town Manager Town of Pembroke 100 Center Street Pembroke, MA 02359 Dear Mr. Chenard: I have received the petition of Kimberly Kenney appealing the response of the Town of Pembroke (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 26, 2023, Ms. Kenney requested, “[a]ny and all documentation, correspondences, requests, permits, letters, memos, meeting minutes, and email threads, dated between January 1, 2004 through to March 26, 2023” regarding a named address. Prior Appeal The requested records were the subject of a prior appeal. See SPR23/0842 Determination of the Supervisor of Records (May 11, 2023). On May 16, 2023, the Town provided a revised fee estimate. Objecting to the fees, Ms. Kenney petitioned this office and this appeal, SPR23/1039, 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 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 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

William Chenard SPR23/1039 Page 2 May 31, 2023 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 May 16th fee estimate In its May 16, 2023 response, the Town stated “[i]t is estimated that it will cost $150.00 to search for and locate responsive records” and provided the following estimate: Title Hours Per Cost Assistant to the 2 Hours $ 27.09/hour; DPW to search Reduced to $25.00 for and locate per hour, as required hard copy and electronic records responsive to the Department of Public [Works] Assistant to the 2 Hours $ 27.34/hour; Water Reduced to $25.00 Department to per hour, as required search for and locate hard copy and electronic records responsive to the Water Department Assistant Town 2 Hours $ 41.42/hour; Manager to Reduced to $25.00 search for and per hour, as required locate hard copy and electronic records responsive to the Select Board Total 6 hours $150.00

William Chenard SPR23/1039 Page 3 May 31, 2023 Based on the revised fee estimate it appears the Town is assessing a fee for 6 hours to search for the requested records. However, it is unclear why the Town requires that amount to time to complete the task. The Town must provide additional information explaining why the estimated amount of time is required. The Town must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to searching, compiling, segregating or redacting, as well as copying the responsive records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Conclusion Accordingly, the Town is ordered to provide Ms. Kenney 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: Kimberly Kenney