Kimberly Kenney v. Pembroke, Town of - Town Clerk (SPR 20231727)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 10, 2023 SPR23/1727 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 specified location. Prior Appeals The requested records were the subject of prior appeals. See SPR23/0842 Determination of the Supervisor of Records (May 11, 2023) and SPR23/1039 Determination of the Supervisor of Records (May 31, 2023). In my May 31st determination, I ordered the Town to provide additional details regarding its fee estimate. On July 21, 2023, the Town provided a further response. Objecting to the fees, Ms. Kenney petitioned this office and this appeal, SPR23/1727, 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, 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 SPR23/1727 Page 2 August 10, 2023 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 July 21st response In its July 21, 2023 response, the Town stated the following: As previously detailed in the Town’s May 16, 2023 fee estimate, the Town’s 6- hour fee estimate was based upon the estimated time required for three Town employees—the Assistant to the Director of Public Works, the Assistant to the Water Department, and the Assistant Town Manager—to “search for and locate hard copy and electronic records responsive to” the request made to each respective Department. See Exhibit G. Also, this fee estimate was based solely upon the estimated time required to search for and locate the responsive records; the fee estimate does not encompass the estimated time required to compile, segregate, redact, or reproduce the requested records. Indeed, until said search is completed, the Town cannot accurately assess how much (if any) time will be required to compile, segregate, redact, or reproduce the responsive records. The Town’s revised fee estimate is listed below: Title Hours Per Cost Assistant to the DPW to 2 Hours $ 27.09/hour; search for and locate hard Reduced to $25.00 copy and electronic records per hour, as responsive to the Department required of Public [Works] Assistant to the Water 2 Hours $ Department to search for and 27.34/hour; locate hard copy and Reduced to electronic records responsive $25.00 per to the Water Department hour, as required Assistant Town Manager to 2 Hours $41.42/hour; search for and locate hard Reduced to copy and electronic records $25.00 per responsive to the Select hour, as Board required

William Chenard SPR23/1727 Page 3 August 10, 2023 Total 6 hours $150.00 Based on the Town’s July 21, 2023, response it appears the Town is assessing a fee for 6 hours to search for the requested records. However, it remains unclear if the Town is charging for the first 2 hours of the search. The Town is reminded that 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). The Town must provide additional information explaining if the fee includes the first two hours of searching. I encourage Ms. Kenney and the Town to communicate further in order to facilitate producing records efficiently and affordably. Ms. Kenney may wish to narrow the request or include additional factors to enable the search to be processed in an efficient manner. G. L. c. 66, § 10(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. 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 Carolyn M. Murray, Esq.