Jean Krulic v. Truro, Town of - Town Clerk (SPR 20241029)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 19, 2024 SPR24/1029 Elisabeth Verde Town Clerk Town of Truro 24 Town Hall Road Truro, MA 02666 Dear Ms. Verde: I have received the petition of Jean Krulic appealing the response of the Town of Truro (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 21, 2024, Ms. Krulic requested 17 categories of records including, an identified case from the Town, whistleblower complaint, conclusions regarding possible land exchanges between the Town of Truro and the Cape Cod National Seashore, records pertaining to possible land swaps, records pertaining to an investigation regarding events at the polling place on May 9, 2023, records regarding an identified individual’s attempts to obtain alternate employment, records regarding quotes cited in the Provincetown Independent, and records of communications regarding the Town Manager’s performance. The Town provided a response on February 5, 2024. Unsatisfied with the response, Ms. Krulic petitioned this office and this appeal, SPR24/1029, was opened as a result. Fee estimate – 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 attributed to the lowest paid employee who has the necessary skill required to search for, 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

Elisabeth Verde SPR24/1029 Page 2 April 19, 2024 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). The Town’s February 5th Response In its February 5, 2024 response, the Town provided a fee estimate for a total of $200.00 to provide responsive records. The Town also stated that it anticipated the withholding or redaction of records pursuant to Exemptions (a) and (c) of the Public Records Law and pursuant to attorney-client privilege. The Town cited the statute, G. L. c. 214, § 1B pursuant to Exemption (a) of the Public Records Law in which information may be withheld or redacted. The Town further estimated that it would require a total of eight hours to locate responsive records and redact any material that is required by law to be redacted, before production. The Town further advised that the employees’ time to search and redact are as follows: two hours: Records Access Officer; four hours: Town Manager’s Office’ two hours: Information Technology. The Town stated, “[a]s permitted by law, you will be charged for all employee search time to locate and identify responsive records, at the hourly rate of the lowest paid person capable of compiling, segregating, redacting where required by law, and reproducing responsive records…” The Town further opined that it has “…fewer than 20,000 residents as of the last U.S. decennial census (approx. 2,454 [residents]) and therefore, you will be charged for all employee time necessary to respond to this request.” Although the Town has provided an estimate of the total hours each employee will spend searching and segregating and/or redacting records, it is unclear how much time is for searching and how much time is necessary for segregation and/or redaction. In addition, it is not clear what tasks are involved to prepare responsive records for production. As such, the Town must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Also, it is unclear whether the Town is assessing a fee for redactions under Exemption (c). See G. L. c. 66, § l0(d)(iii) (a fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law for Exemption (a), or attorney- client privilege, or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv)).

Elisabeth Verde SPR24/1029 Page 3 April 19, 2024 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 a response to Ms. Krulic, 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. Ms. Krulic may appeal the substantive nature of the Town’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jean Krulic