Neal McNamara v. Wayland, Town of (SPR 20241014)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 16, 2024 SPR24/1014 Trudy L. Reid Town Clerk Records Access Officer Town of Wayland 41 Cochituate Street Wayland, MA 01778 Dear Ms. Reid: I have received the petition of Neal McNamara appealing the response of the Town of Wayland (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 7, 2024, Mr. McNamara requested, “…disciplinary records/narratives for [identified police officers].” Previous petition This request was the subject of a previous fee petition. See SPR24/0532 Determination of the Supervisor of Records (March 20, 2024). In my March 20th determination, I found the Town did not meet its burden to charge a fee in excess of $25.00 per hour. The Town provided a further response on April 2, 2024. Unsatisfied with the Town’s response, Mr. McNamara petitioned this office and this appeal, SPR24/1014, was opened as a result. Fee estimates – municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 (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 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

Trudy L. Reid SPR24/1014 Page 2 April 16, 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, Mr. McNamara stated, “[t]he town is saying that it will require an employee 10 hours to redact this document, plus the four free hours allowed under the law. The town has not provided even a page count for the documents it is preparing for this request. The town has also declined to respond to my request for an explanation of this charge.” The Town’s April 2nd fee estimate In its April 2, 2024 fee estimate, the Town assessed a fee of $250 to produce responsive records based upon 10 hours. The Town stated, “…because there are redactions that must take place before we can release the report to you, we stand by our fee of $250.00 for the time it has taken our Human Resources Manager to do this process.” Although the Town has indicated that the time to prepare responsive documents for production results in a calculation of 10 hours, it is unclear how the Town requires this many hours to produce the records. It is not clear from the Town’s response, how much time is being allocated to search for the records and how much time is necessary for segregation and/or redaction. It is also uncertain if any statutes are involved that the Town will employ to segregate and make redactions pursuant to Exemption (a) of the Public Records Law. As stated above, 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). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Town also did not explain if the fee included the two free hours required to be provided or if the Town has fewer than 20,000 residents and is charging for 10 hours. See G. L. c. 66, § 10(d)(iii). Further, the Town must state what tasks are involved in its calculation, and provide further details regarding its estimate. Particularly, it is unclear how many pages the Town intends to redact, or how many minutes per page the Town would need to redact the records. Additionally, the Town has not explained if the hourly rate being used is that of the lowest paid employee with the necessary skill to perform the task(s). The Town must clarify these matters. 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).

Trudy L. Reid SPR24/1014 Page 3 April 16, 2024 Conclusion Accordingly, the Town is ordered to provide Mr. McNamara with a response to the request, provided 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: Neal McNamara