Gracemarie & Joyce Tomaselli v. Salisbury, Town of - Town Clerk (SPR 20232197)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 28, 2023 SPR23/2197 Melinda J. Morrison Town Clerk Town of Salisbury 5 Beach Road Salisbury, MA 01952 Dear Ms. Morrison: I have received a petition from Gracemarie and Joyce Tomaselli appealing the response of the Town of Salisbury (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 25, 2023, the Tomasellis requested, “documents pertaining to Town sewer contract #7” and “[d]ocuments pertaining to Town sewer contract #8 Elm Street Sewers MASS Project…” The Town responded on August 8 and August 11, 2023. Unsatisfied with the Town’s responses, the Tomasellis petitioned this office and this appeal, SPR23/2197, 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). 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). 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

Melinda Morrison SPR23/2197 Page 2 September 28, 2023 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 Fee Estimate In its August 8, 2023 response, the Town provided a fee estimate of $1250.00 and stated, “[t]his is an extensive request of old records that will require research to locate the records. The total estimated cost of complying with your request for the files is $1250.00 for 50 hours ($25 per hour) of search and copy time[.]” In its August 11, 2023 response, the Town reiterated its fee estimate of $1250.00 and stated, “[t]he 50 hours of estimated time is for employee time to search for, compile, segregate, and redact or reproduce the requested records. The Town believes this is an accurate estimate of the time it will take to supply documents responsive to your request…” Although the Town has estimated that the process of compiling, reviewing, and preparing requested records requires 50 hours to produce responsive records, it is not clear from the Town’s estimate how much time is allocated to search, and how much time is 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). Further, based on the Town’s August 11th estimate, it appears the Town intends to assess a fee for redactions. However, it is unclear if the redactions are required by law. As such, I find the Town must clarify and state the applicable statutes, if any. Pursuant to the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). Additionally, the Town’s fee estimate lacks confirmation that the rate of $25 per hour is of the lowest paid employee who is capable of performing the task(s) and whether the estimated 50 hours includes the first free 2 hours to search for, compile, segregate, redact or reproduce records. 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 clarify these matters. For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee assessed in its August 8th and August 11th estimates is consistent with G. L. c. 66, § 10(d).

Melinda Morrison SPR23/2197 Page 3 September 28, 2023 Conclusion Accordingly, the Town is ordered to provide the Tomasellis 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Gracemarie Tomaselli Joyce Tomaselli