Gracemarie & Joyce Tomaselli v. Salisbury, Town of - Town Clerk (SPR 20232480)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 2, 2023 SPR23/2480 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…” Prior Appeal This request was the subject of a prior appeal. See SPR23/2197 Determination of the Supervisor of Records (September 28, 2023). In my September 28th determination, I found that the Town needed to revise its fee estimate of $1,250.00 or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). The Town responded on October 11, 2023. Unsatisfied with the response, the Tomasellis petitioned this office and this appeal, SPR23/2480, was opened as a result. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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 SPR23/2480 Page 2 November 2, 2023 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 11th Fee Estimate In its October 11, 2023 response, the Town provided a fee estimate of $1000.00 and stated: The Town has reduced the estimated time to exclude segregation and redaction as the Town believes, upon further review, that the relevant documents will not need to be segregated and redacted. The estimated time of 40 hours is the time that it will take the Town to find the documents that exist… and then compile and reproduce them. In order to comply with [the] request, the Town will have to locate and review records including legal cases, town meeting warrants and minutes, commitment books, assessment cards, and sewer plans and contracts dating back as far as 30-40 years. The Town will have to search for these documents from all relative departments as well as our archived records in storage. Moreover, if these documents were part of prior court cases and/or appeals they may be located with our Town Counsel, who would have to access their storage units to find the past documents that were submitted for discovery purposes in legal cases that have been closed. If that occurs, [Town Counsel] would charge the town their hourly fee which would be much greater than the Town’s fee at which time the fee estimate would need to be revised. The Town further states: The Town of Salisbury has a population less than 20,000 residents which allows the Town to include in our fee estimate and charge for the first two hours of time required to search for and provide the documents. The 40 hours of estimated time includes those first two hours. Additionally, the lowest paid town employee capable of performing this task has a pay rate of $28.75, thereby, capping the amount that the Town may charge at $25 per hour. In this case, where the Town has explained that it will charge for search and reproduction of the records, and has explained the amount of time required to search for records dating back as

Melinda Morrison SPR23/2480 Page 3 November 2, 2023 far as 30-40 years, and confirmed that the lowest paid individual with the necessary skill is paid more than $25 per hour, I find the Town has met its burden to explain how it has provided a reasonable fee estimate for the production of records responsive to this request. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). I encourage the Tomasellis and the Town to communicate in order to facilitate producing records efficiently and affordably. The Tomasellis may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(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, I will consider this administrative appeal closed. If issues remain after further communication, the Tomasellis may file an appeal. Sincerely, Manza Arthur Supervisor of Records cc: Gracemarie Tomaselli Joyce Tomaselli