Mass Accountability Network v. Swampscott, Town of - Town Clerk (SPR 20232220)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 29, 2023 SPR23/2220 Jared LaLiberte Town Clerk/Record Access Officer Town of Swampscott 22 Monument Avenue Swampscott, MA 01907 Dear Mr. LaLiberte: I have received the petition of Massachusetts Accountability Network appealing the response of the Town of Swampscott (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 15, 2023, the requestor sought the following records: [1] ... all 911 or non emergency calls made for a call from Aggregate Industries for the police to show up for a man taking pictures and/or video. [2] ... any BWC footage from Officer ... and any police/incident reports made. The Town responded on June 28, 2023. Unsatisfied with the Town’s response, the requestor petitioned this office and this appeal, SPR23/2220, 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 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

Jared LaLiberte SPR23/2220 Page 2 September 29, 2023 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 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 June 28th response In its June 28, 2023 response, the Town provided a fee estimate of $50.00 as follows: Police Department 2 hours (to search $25 hour reduced to $50 electronic and hard copy records) $25.00 per hour. Total 2 hours $50 In its June 28, 2023 response, the Town advised that it “has fewer than 20,000 residents as of the last U.S. Decennial census.” The Town further advised that the requestor will be “charged for all employee search time to locate and identify responsive records, at the hourly rate of the lowest paid person capable of compiling, segregating, redacting where required by law, and reproducing responsive records, in accordance with 950 CMR 32.07(2)(i) This rate shall not exceed $25.00 per hour...” The Town further advised that “… that the actual cost of producing the records may vary once the Town begins preparing the records for response. At this time, it is anticipated that the Town will be able to produce most of the records electronically. In the event that the best way to produce such a large quantity of emails and hard copy records is to provide them on a USB Drive, you will be charged for the cost of the USB Drive. Please be advised further that if there are any responsive records that do not exist in electronic format, or may only be redacted manually and not electronically (and thus must be printed prior to redaction) copying charges will apply at the rate of $.05 per page.” Waiver of fees In its petition, the requestor contends they are entitled to a waiver of fees because “. . . this request was ‘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 primarily in the commercial interest of the requestor.’” The requestor is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order that a record custodian do so.

Jared LaLiberte SPR23/2220 Page 3 September 29, 2023 Although the Town has estimated that the process to search responsive documents for production will take 2 hours of employee time, it is unclear how the Town requires this amount of time to produce responsive records. It is not clear from the Town’s response what tasks are involved in the search process. As such, the Town must provide further details regarding its fee estimate and what the task(s) entails. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). 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 the requestor 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: Massachusetts Accountability Network