Andrew McNaught v. Dracut, Town of - Office of the Town Clerk (SPR 20231949)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 29, 2023 SPR23/1949 Melissa Parra Assistant Town Clerk Town of Dracut 62 Arlington Street Dracut, MA 01826 Dear Ms. Parra: On August 22, 2023, this office received your petition on behalf of the Town of Dracut (Town) seeking an extension of time to produce records, and permission to charge for time spent segregating or redacting responsive records. See G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the Town furnished a copy of the petition to the requestor, Andrew McNaught. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On August 10, 2023, Mr. McNaught requested “a copy of any and all records relating or referring to [identified address] in Tyngsborough, MA. This request is to include, but not be limited to, licensing records, permits, hearing records, board meeting records, meeting minutes, complaints, and/or any other records currently within custody of the Town of Dracut.” On August 22, 2023, Mr. McNaught narrowed the scope of his request to “omit the emails.” In an email to this office on August 23, 2023, the Town sent a revised petition seeking only permission to charge for time spent segregating or redacting responsive records, “reflecting the reduced scope of [Mr. McNaught’s] initial Public Records Request from Aug. 10, 2023.” In light of the Town’s revised petition, I find it is unnecessary to address the Town’s request for an extension of time. I will address the Town’s request to charge for time spent segregating or redacting responsive records. Petition to assess fees The Supervisor may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the 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

Melissa Parra SPR23/1949 Page 2 August 29, 2023 public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 2 (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). Current Petition In its August 23rd petition, the Town states that: Presently the scope of the request includes all Town Departments, including Planning and Zoning Departments, Board of Selectmen and Licensing Officers, Board of Health and Building Inspector, and Clerk’s Office and Treasurer and Assessors Offices, currently excluding emails based off of [Mr. McNaught]’s reduced scope, as of August 22, 2023.

Melissa Parra SPR23/1949 Page 3 August 29, 2023 The Town further explained: [the Town] requests that it be allowed to charge a fee of $25 per hour to search for, compile or reproduce the requested records based on the aforementioned exemptions. That rate is justified given that the review will be performed by multiple positions by the lowest paid employee who is capable of performing the task and whose effective hourly rate exceeds $25 per hour. The fee estimate to produce the records sought in the request is $100 to date. (i.e. 6-2 hours X $25). Additionally, it is anticipated that all requested documents will require review to determine the applicability of Exemptions (a-v) under G.L. c4, s. 7(26), or other privilege or exclusion under the law. Therefore, [the Town] respectfully requests approval of its fee petition and deposit of $100 in order to commence recovery, review and redaction of all responsive documents. Please be advised that, under 950 C.M.R. 32.07(2)(a) “a records access officer may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection.” In contrast, 950 C.M.R. 32.06(4)(h)(1) provides that “any records access officer may petition the Supervisor to charge for time spent segregating or redacting records.” Conclusion I find the Town has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Consequently, permission to charge for time spent segregating or redacting responsive records cannot be granted. Please note, however, this does not preclude the Town from charging for segregation and redaction that is required by law. Further, this office encourages Mr. McNaught and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii)(a) municipality or agency 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 or agency to produce records sought more efficiently and affordably). When preparing a fee estimate for the provision of the requested records, the Town is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Town must provide a response to Mr. McNaught within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4).

Melissa Parra SPR23/1949 Page 4 August 29, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Andrew McNaught