Ken Smith v. Clarksburg, Town of - Town Administrator (SPR 20232406)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 24, 2023 SPR23/2406 Carl W. McKinney Administrator Town of Clarksburg 111 River Road Clarksburg, MA 01247 Dear Mr. McKinney: I have received a petition from Ken Smith appealing the response of the Town of Clarksburg (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 20, 2023, Mr. Smith requested: [C]olor electronic copies both front and back … one issued sample of each of the [following]: [1.] Restaurant Liquor License [2.] Common Victualler [3.] Entertainment [4.] Building Certificate of Inspection [5.] Health Food Service Permit [6.] Health Tobacco Permit [7.] Building Permit Job Card [8.] Building Certificate of Occupancy The Town responded on October 10, 2023, providing a fee estimate. Objecting to the fees, Mr. Smith petitioned this office and this appeal, SPR23/2406, 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). 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

Carl W. McKinney SPR23/2406 Page 2 October 24, 2023 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). 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 October 10th Fee Estimate In its October 10, 2023 response, the Town stated, “[the Town is] in receipt of [Mr. Smith’s] request as of today. [The Town] will work on the estimated man hours necessary to acquire those documents…]” In an additional email sent on October 10, 2023 the Town provided a fee estimate of $510.00 and stated, “[the Town Clerk] estimates 3 days to retrieve/locate and process. Once [the Town] receive[s] [Mr. Smith’s] payment of $510.00 we will proceed with [Mr. Smith’s] request.” G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” In this case, where Mr. Smith submitted a request on September 20, 2023, and the Town did not provide a response or a good faith fee estimate until October 10, 2023, I find it is unclear whether the Town complied with G. L. c. 66, § 10(e). Specifically, the Town must demonstrate whether it provided a response to Mr. Smith’s September 20th request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. Conclusion Accordingly, the Town is ordered to provide Mr. Smith with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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.

Carl W. McKinney SPR23/2406 Page 3 October 24, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Ken Smith