Devlin Marie Selman v. Conway, Town of - Office of the Town Administrator (SPR 20231643)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 1, 2023 SPR23/1643 Véronique Blanchard Town Administrator Town of Conway 32 Main Street P. O. Box 240 Conway, MA 01341 Dear Ms. Blanchard: I have received the petition of Devlin Marie Selman appealing the response of the Town of Conway (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 8, 2023, Ms. Selman requested, “…all correspondences between the Town and Nexamp Solar from January 2019 to March 2023.” Prior Petition and Appeals This request was the subject of a prior petition for time. See SPR23/0537 Determination of the Supervisor of Records (March 28, 2023). This request was also the subject of previous appeals. See SPR23/0663 Determination of the Supervisor of Records (April 20, 2023) and SPR23/1232 Determination of the Supervisor of Records (June 23, 2023). In my June 23rd determination, I found it was uncertain whether the fees included time to redact records under Exemptions (o) and (p) and the Town was directed to clarify. The Town provided a response on July 17, 2023. Unsatisfied with the response, Ms. Selman petitioned this office and this appeal, SPR23/1643, was opened as a result. Fee Estimates 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

Véronique Blanchard SPR23/1643 Page 2 August 1, 2023 Municipalities may not assess a fee for the first two 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). The Town’s July 17th Fee Estimate In its previous response on May 4, 2023, the Town broke down its fee estimate as follows: [1] Record search time, 10 hours at a cost of $25.00 per hour ($250.00) The records requested cover the years 2019-to present day. This requires gathering emails from normal town department, which include the Town Clerk’s office, Treasurer/Tax Collector’s office, Assessors office as well as the Selectboard and Town Administrator’s offices… Given both the number of records to be gathered, the number of departments involved, and the number of years involved, this was our best estimate for how long the search will take. There are less than 20,000 people in the Town of Conway, in fact, in the 2020 Census the population of Conway was 1,761. [2] Record review time for any redactions pursuant to the laws of the Commonwealth, 5 hours at a cost of $25.00 per hour ($125.00) The information I would be reviewing for redaction would be for any personal information contained, and any information covered by attorney/client privilege… Given that information is required from the Town Clerk’s office, Treasurer/Tax Collector’s office, and the Assessor’s office it is certainly possible that there is information contained within these documents that may be protected from disclosure by M.G.L. c. 4, section 7, paragraph 26 (o) and (p)… Furthermore, I am the only full-time employee in the Town Office. And therefore, the only employee available to compile this information from so many sources and departments. Conway Town Hall and Offices have 8 employees within; I am the only full-time person.

Véronique Blanchard SPR23/1643 Page 3 August 1, 2023 [3] Record copying time, 2 hours at a cost of $25.00 per hour ($50.00) I had been initially told that the Assessors office had some information in hard copy, but this may end up being duplicates of email documents so may not apply. [4] Copying costs ($.05) per page or cost of zip drive or other technical equipment to produce records ($10.00) The $10 is for the usb drive, already purchased, to be loaded with the emails and given to Ms. Selman. In its July 17, 2023 response, the Town gave a revised fee estimate of $385.00 and stated the following: Given that the town did not put forward a petition for redactions under Exemptions (o) and (p), the town will reduce the fee by $50, a two-hour reduction in the amount of time required for redactions and will only charge for redactions required by law for attorney-client privilege. This would put the fee at $385. I also confirm again that I am the only town employee capable of fulfilling this records request, and that my hourly rate is $32.83. Again, the town has not put forth a petition to use my hourly rate and instead is using the maximum allowable rate of $25.00 per hour. The Town further states: This request encompasses a four-year span from 2019 to today, and includes email accounts from many different town departments… Many of the emails involved with a large solar project include correspondence about the permitting process, but a large number of emails will also pertain to the difficulties encountered with the solar array and correspondence concerning finding a remedy to those issues. Current appeal In her appeal, Ms. Selman states, “[a] $50 deduction is hardly anything for a lowered fee request… There should… be no fee for this request…” Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not

Véronique Blanchard SPR23/1643 Page 4 August 1, 2023 primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). Although the Town states that it would take 3 hours to redact the records, it is unclear how many records there are, nor the number of minutes that the Town must spend per page for the redactions. The Town must clarify this matter. I encourage Ms. Selman and the Town to communicate in order to facilitate producing records efficiently and affordably. Ms. Selman may wish to narrow the parameters or include factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Town must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Ms. Selman with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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: Devlin Marie Selman