Geoff Beach v. Acton, Town of - Town Clerk (SPR 20240279)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 12, 2024 SPR24/0279 Leo Mercado Town Clerk Town of Acton 472 Main Street Acton, MA 01720 Dear Mr. Mercado: I have received the petition of Geoff Beach appealing the response of the Town of Acton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 2, 2024, Mr. Beach requested the following: 1) All records documenting rules, regulations, policies, and procedures regarding procurement that were in place in the Town of Acton at any time during the period 6/30/2018 to the present. 2) (a) All records related for MGL Chapter 30B compliance for the 3/11/2020 attached contract agreement with GCG Associates, Inc., including, but not limited to, records of estimates of the contract value prior to bid solicitation, any requests for quotes, proposals, or invitations for bids, public notice of the call for quotes/proposals/bids, all quotes/proposals/bids received, the notice of award, and written rationale for selection of GCG Associates, Inc. (b) All communications not included in #4, below, regarding the decision to seek an external Peer Review consultant for the Town and the decision to use GCG Associates, Inc. for that role. 3) Any records related to extension of the terms of the attached 3/11/2020 GCG Associates, Inc. Contract beyond the 12/31/2020 end date, and any records related to subsequent agreements or contracts with GCG Associates, Inc. for peer review services. 4) For the period 6/1/2019 to the present: All Town of Acton emails containing any of the words {"GCG", "53G", "peer", or "consultant”} and involving any of the following senders or recipients: [a list of named individuals], and any member of the Planning Board, Select Board, Zoning Board of Appeals, and Conservation Commission serving at any part of the requested time period. 5) All emails sent to or received from any email with the domain 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

Leo Mercado SPR24/0279 Page 2 February 12, 2024 “gcgassociates.net” in the period 6/30/2019 to 4/1/2020. 6) For the list of projects [in a specified list] that have been reviewed by GCG Associates, Inc., please provide all of the following records that exist: (a) Any requests for quotes for peer review from other vendors, and any quotes received (b) review fee estimate(s) provided by GCG Associates, Inc. (c) Notice to proceed as described in the 3/11/2020 GCG Associates, Inc. contract (d) The final report of the 53G account used for the project, in the form provided to the applicant as per MGL c44 sec 53G. The Town responded on January 5, 2024, providing a fee estimate. Objecting to the fees, Mr. Beach appealed, and this case was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. 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

Leo Mercado SPR24/0279 Page 3 February 12, 2024 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). Current Appeal In his appeal petition, Mr. Beach contends that the Town’s January 5th fee estimate is “a violation of the timely response requirement of MGL c. 66, § 10(a), and lack of meeting the threshold requirements to charge a fee as per MGL c. 66.” The Town’s January 5th Response In its initial January 5, 2024 response, the Town provides a total fee estimate of $300. G. L. c. 66, § 10(e) Following its January 5, 2024 fee estimate, in a second response to Mr. Beach, sent on the same day, the Town states the following: I have not heard back from our IT dept with the time it will take for their portion of your request. I will send you an additional invoice for their time. Please be advised that 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).” Where Mr. Beach submitted his request on January 2, 2024, and the Town initially responded on January 5, 2024 by providing a fee estimate under G. L. c. 66, § 10(b), I find the Town may assess a fee to produce responsive records. The Town’s January 5th Fee Estimate In support of its January 5th fee estimate of $300, the Town provides the following information: Due to the scope of work and time involved in your request the Town of Acton will require payment of $25.00 per hour for any time beyond the initial two hours. The Town of Acton has estimated that it will take 14 hours to complete your request. Calculating the estimated time by the hourly fee of $25.00 per hour, the Town of Acton will need to receive payment of $300.00 before beginning work

Leo Mercado SPR24/0279 Page 4 February 12, 2024 on your request. Based on the Town’s January 5th response, it is unclear why the Town requires 14 hours to respond to the request. The Town must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, in its response, the Town has not stated whether the hourly rate being used is equal to or less than that of the lowest paid employee with the necessary skills to perform the tasks. The Town must clarify this. For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Town is ordered to provide Mr. Beach 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. Sincerely, Manza Arthur Supervisor of Records cc: Geoff Beach