Paul Healey v. Somerset, Town of (SPR 20233087)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 28, 2023 SPR23/3087 Mark Ullucci Town Administrator Town of Somerset 140 Wood Street Somerset, MA 02726 Dear Mr. Ullucci: On December 20, 2023, this office received your petition on behalf of the Town of Somerset (Town) seeking a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, I understand that the Town furnished a copy of this petition to the requestor, Paul Healey. G. L. c. 66, § 10(d)(iv)(2). On October 27, 2023 and October 25, 2023, Mr. Healey requested the following: [1.] ... emails ... to /from [an identified individual] public and private emails ... [and] ... email to/from [an identified individual] ... emails related to Somerset Town Business for period 24 -27 October 2023. The previous one for the period 01 Sep to 24 [-] Oct 2023. [2.] ... emails to/from [an identified individual] ... [and] ... emails to/from [an identified individual] in Somerset Record System and ... personal email system related to his role in a Somerset Public Body on ZBA and Water Commission and other Public roles he may have had for the period 01 Sep 2023 through 24 October 2023. Previous Appeals This request was the subject of a previous appeal. See SPR23/3048 and SPR23/3049 Determination of the Supervisor of Records (December 22, 2023). In my December 22nd determination, I closed SPR23/3048 and SPR23/3049 in light of the Town’s December 20th response. Included in the Town’s December 20th response is the petition which is the subject of this determination letter. The Town’s December 20th response also included a fee estimate, which is the subject of a separate appeal, SPR23/3100, currently open. 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

Mark Ullucci SPR23/3087 Page 2 December 28, 2023 Petition to Assess Fees – Municipalities The Supervisor of Records (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 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. 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).

Mark Ullucci SPR23/3087 Page 3 December 28, 2023 Conclusion In this case, the Town submitted its petition on December 20, 2023, more than ten business days after receipt of the request. In light of the fact that the Town has not demonstrated it submitted a timely petition, permission to charge in excess of $25 per hour cannot be granted. 950 C.M.R. 32.06(4)(g). In its December 20th response, the Town requests that Mr. Healey “consider narrowing his search to something specific to assist in the expediency of this request.” This office encourages the Town and Mr. Healey to continue to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification to 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 to produce records sought more efficiently and affordably). Any subsequent fee estimate from the Town must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Sincerely, Manza Arthur Supervisor of Records cc: Paul Healey