Chris Malone v. Danvers, Town of - Town Clerk (SPR 20240326)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 7, 2024 SPR24/0326 Catherine S. Ellsworth Records Access Officer Town Clerk Town of Danvers One Sylvan Street Danvers, MA 01923-2790 Dear Ms. Ellsworth: On February 2, 2024, this office received your petition on behalf of the Town of Danvers (Town) seeking permission to charge for time spent segregating or redacting responsive records. 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, Chris Malone. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On January 28, 2024, Mr. Malone requested the following: [1] Evidence of notification specific to permit compliance to all residential kitchen renovation projects, either randomly chosen or as result evidentiary observation by responsible officials, in the Town of Danvers from September 11, 2020 – September 11, 2023[;] [2] The Town of Danvers policy/protocol/procedure regarding the processing of “Complaint/Investigation” forms[;] [3] The Town of Danvers policy/protocol/procedure regarding the processing of harassment complaints filed against the Town[.] 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 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

Catherine S. Ellsworth SPR24/0326 Page 2 February 7, 2024 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 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). Current Petition In its petition, the Town requests it be permitted to charge $25 per hour “to search for, segregate and potentially redact records that are responsive to the request.” Additionally, the Town states they “replied to the request in a timely fashion on February 2, 2024, produced all

Catherine S. Ellsworth SPR24/0326 Page 3 February 7, 2024 records responsive to requests nos. 2 and 3, provided a fee estimate to produce the records responsive to request no. 1, and indicated that it would petition the Supervisor in connection with that estimate.” In support of its request, the Town provides the following information: [T]he Town has identified approximately 3,000 total residential permits in request no. 1’s specified time frame, each of which is kept in its own individual file folder. The approximately 3,000 residential permits contain approximately 20 pages each, totaling to around 60,000 pages which are potentially responsive to request no. 1. … [A] review of the approximately 3,000 records potentially responsive to request no. 1 indicates that redactions may need to be made pursuant to Exemption (c) for certain information, including, but not limited to, personal cell phone numbers and email addresses, personal finance information contained within certain forms and correspondence, and other private information. In light of the Town’s petition, I find the Town has met its burden to explain how given the nature of the responsive records, the request could not prudently be completed without segregation or redaction. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for the segregation and redaction of such exempt material. Conclusion Accordingly, I find that, to the extent the responsive records contain the exempt information described above, the Town may assess a fee for segregation and redaction. Please note, Mr. Malone has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Chris Malone David A. DeLuca, Esq., Murphy, Hesse, Toomey & Lehane, LLP. James Donnelly, Esq., Murphy, Hesse, Toomey & Lehane, LLP.