Robert Jones v. Needham, Town of (SPR 20231646)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 27, 2023 SPR23/1646 Theodora K. Eaton Town Clerk Town of Needham 1471 Highland Avenue Needham, MA 02492 Dear Ms. Eaton: I have received the petition of Robert Jones appealing the response of the Town of Needham (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 30, 2023, Mr. Brown requested “…the applications and food permits issued by the Needham health department over the past three months.” The Town provided a response on July 17, 2023, which included a fee estimate. Unsatisfied with the Town’s response, Mr. Jones petitioned this office, and SPR23/1646 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 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

Theodora K. Eaton SPR23/1646 Page 2 July 27, 2023 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is 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 July 17th response In its July 17, 2023 response, the Town provided a fee estimate of $350.00. The Town stated that: The lowest hourly rate for the Environmental Health Staff member with authority and training to access these records is [a named individual], who is paid an hourly rate of $37.57 per hour. Depending on the outcome of that petition, the cost of completing the document request may be as long as $150 ($25/hr * 6 hrs) or possibly as high as $225.42 ($37.74/hr * 8 hrs). As mentioned, that does not include the cost of reproducing the materials. Those estimates (6 hours) are based on the low end of the time estimated to complete the task, minus the first two hours which are free in accordance with state law. Needham will subtract those free hours from the additional total time required to complete your request, despite the fact that work on your request has already taken more than 2 hours of staff time. [The Town] …estimated that it will take 8 to 10 hours of time to search for and compile all the requested records. Specifically, a trained and qualified staff member will need to open, download, and transfer each relevant file to a USB or other device to share with you. These fees are not intended to limit, deter, or prevent access to the records, but rather, recover the Town’s costs for reviewing records which it is legally required to review. This fee is also reasonable, as it is significantly less than the actual cost of producing the records. Although the Town has estimated that the process of compiling, reviewing, and preparing responsive documents for production will cost between $150.00 to $225.42 or approximately 6 to 8 hours, it is unclear how the Town requires this many hours to produce responsive records. It is unclear from the Town’s estimate how many hours are allocated to search, and how many hours are allocated for segregation, and redaction of the records. As such, the Town must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). I encourage the parties to communicate in order to facilitate producing records efficiently and affordably. The requestor may wish to narrow the scope of the request 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) (a municipality shall suggest a reasonable modification of the scope of

Theodora K. Eaton SPR23/1646 Page 3 July 27, 2023 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). 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 a response to Mr. Jones, 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. Mr. Jones may appeal the substantive nature of the Town’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Robert Jones