Brenda Eckstrom v. Wareham, Town of - Town Administrator (SPR 20240193)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 6, 2024 SPR24/0193 Derek D. Sullivan Town Administrator Town of Wareham Memorial Town Hall 54 Marion Road Wareham, MA 02571 Dear Mr. Sullivan: I have received the petition of Brenda Eckstrom appealing the response of the Town of Wareham (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 30, 2023, Ms. Eckstrom requested: [1.] a copy of every waiting list for every location (identified) in Wareham that the Town offers bench placement [2.] a copy of any letters or emails written to the Town requesting to donate a bench or requesting the placement of a bench that got them on “the list” [3.] any correspondence from the Town Administrator’s office, or any other office authorized, to [identified individuals] explaining the process for getting a memorial bench placed and the reason their requests were denied or placed on a waiting list [4.] a copy of the letter written by [an identified individual] sometime around 2019 – 2020 requesting the slat bench that was put in during the summer of 2020 [5.] a copy of charges and payment for the slat bench that was granted by the Select Board, in 2020, and its recent repairs that [an identified individual] spoke of at Town Meeting (because it was put in without proper footing) and who paid for the bench, the installation, who oversaw the installation and who paid for the repairing of the footing. 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

Derek D. Sullivan SPR24/0193 Page 2 February 6, 2024 Previous Appeal The requested records were the subject of a previous appeal. See SPR23/2782 Determination of the Supervisor of Records (November 30, 2023). In my November 30, 2023 determination, I ordered the Town to provide a response to Ms. Eckstrom. The Town provided a fee estimate on November 14, 2023. Unsatisfied with the response, Ms. Eckstrom petitioned this office and this appeal, SPR24/0193, 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 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 November 14th Response In its November 14, 2023 response, the Town provided a fee estimate of $50.00. In support of the fee estimate, the Town stated: [w]e have estimated the time to take approximately 6 hours to search and review documents. The first 4 hours are at no cost. The next two hours would total a cost of $50. With next week being a short week we anticipate this request to be completed on or before November 29th. Although the Town has opined that the time “to search and review documents” for production will take 6 hours, it is unclear if any segregation time is included in this calculation.

Derek D. Sullivan SPR24/0193 Page 3 February 6, 2024 Please note that fees for time spent segregating or redacting records cannot be assessed unless required by law. G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Further, in its fee estimate, the Town stated that it will assess a $50.00 fee and this fee is assessed as, “…two hours would total a cost of $50.” However, it is unclear how the Town calculated its $50.00 fee. The Town must confirm that $25.00 is 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. The Town must also state what tasks are involved in its calculation. I encourage Ms. Eckstrom and the Town to communicate in order to facilitate producing records efficiently and affordably. 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). 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 Ms. Eckstrom with a response to her request, in a manner consistent with this order, the Public Records Law, and its Regulations within ten (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: Brenda Eckstrom