Jared Turner v. Lexington, Town of (SPR 20240138)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 24, 2024 SPR24/0138 Jim Malloy Town Manager Town of Lexington 1625 Massachusetts Avenue Lexington, MA 02420 Dear Mr. Malloy: On January 18, 2024, this office received your petition on behalf of the Town of Lexington (Town) requesting a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the Town furnished a copy of the petition to the requestor, Jared Turner. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On January 8, 2024, Mr. Turner requested “…[a]ny and all emails by and between you and any combination of the following people…” Subsequently, on January 17, 2024, Mr. Turner modified his request to “…[a]ny emails that include you and any combination of the following people related to golf…” and “[a]ny emails that include you and any combination of the following people related to the letter [an identified individual] wrote to ICMA in 2021 and related emails and responses that ultimately culminated in a meeting held in Washington D.C. in November 2021…” Petition to assess fees – Municipalities The 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). 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

Jim Malloy SPR24/0138 Page 2 January 24, 2024 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 or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Fee in Excess of $25.00 per Hour In a January 22, 2024 email to this office, the Town clarifies that it seeks “…to charge the hourly rate of the Lexington Town Manager, which is currently $129.83 per hour, since [he] would need to be the one reviewing the emails.” G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). In its January 18, 2024 petition, the Town states the following in support of its request to charge fees in excess of $25.00 per hour:

Jim Malloy SPR24/0138 Page 3 January 24, 2024 I have received a request from an out of state individual for specific email requests that are related to my service for ICMA – International City/County Management Association (not the Town of Lexington). These emails were through my official Town of Lexington email address and therefore kept on our server. … I will note that I have worked with the requestor to have them narrow their request as their original request generated over 17,000 emails for 1 year of the three year period they are requesting information (likely 50,000 overall emails over the three year period). … Our IT Department has pulled the records requested and they total 4,604 emails which I estimate will take me 36 and 72 hours to review (that’s 30 seconds per email and 60 seconds per email). Since these are ICMA-related and Town of Lexington-related, no one else at the Town of Lexington would be able to review these emails and determine if they are relevant to the request. In light of the above, I find the Town has not demonstrated how the request could not be prudently completed without a fee in excess of $25.00 per hour. Consequently, the Town has not met its burden to demonstrate why it must charge in excess of the statutory limit of $25.00 per hour in responding to the request made by Mr. Turner. Conclusion Consequently, I find that the Town has not met its burden to assess fees in excess of $25.00 an hour. Further, this office encourages Mr. Turner and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a 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 municipality to produce records sought more efficiently and affordably). When preparing a fee estimate for the provision of the requested records, the Town is advised to provide a detailed explanation to the requestor detailing why the amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Town must provide a response to Mr. Turner within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4).

Jim Malloy SPR24/0138 Page 4 January 24, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Jared Turner