Marge Motes v. Newburyport, City of - Office of the City Clerk (SPR 20241157)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 24, 2024 SPR24/1157 Richard B. Jones City Clerk City of Newburyport 60 Pleasant Street Newburyport, MA 01950 Dear Mr. Jones: On April 17, 2024, I received the petition of Richard B. Jones, on behalf of the City of Newburyport (City) seeking a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On April 9, 2024, Marge Motes requested the following from the period of May 8, 2023 to June 23, 2024. [1.] Any written correspondence including texts, emails, meeting agendas and/or summaries, phone records, and library incident reports concerning [a.] archive volunteers demonstrating unprofessional behavior to librarian staff including [a named individual] and [b.] the approval of library staff union grievance being presented to Library Board on June 7, 2023… [2.] Any correspondence between: HR Director… to and from former library director… assistant and interim director… former archivist… AFSCME union reps… and union president… and Chief of Staff. Petitions to Assess Fees The Supervisor of Records (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). 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

Richard B. Jones SPR24/1157 Page 2 April 24, 2024 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 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. 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; 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 (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 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).

Richard B. Jones SPR24/1157 Page 3 April 24, 2024 Fee in Excess of $25.00 per Hour In its petition, the City is seeking a waiver of statutory limits on fees and provides the following in support of its request: [The City] would like to submit this ‘fee petition’ as the pay rate submitted by the Newburyport Library to me as RAO is a[t] a rate of $60/hr. In an email sent to this office on April 18, 2024, the City stated, “[t]he estimate was just refined and reduced (hourly rate of $39.19 per hour, with an estimate of 15 hours for the work, totaling $587.85.)” Additionally, in an email sent to this office on April 23, 2024, the City stated, “the hourly rate of 39.19 is the regular and not overtime rate for the lowest paid employee that is qualified to perform the task.” Based on the City’s petition and subsequent emails, I find the City has not met its burden to explain how the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Conclusion I find the City has not met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Further, this office encourages Ms. Motes and the City to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii)(a) municipality or agency 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 municipality or agency to produce records sought more efficiently and affordably). When preparing a fee estimate for the provision of the requested records, the City is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary and how the redactions are required by law. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The City must provide a response to Ms. Motes within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Motes may appeal the City’s fee estimate within ninety days. See 950 C.M.R. 32.08(1).

Richard B. Jones SPR24/1157 Page 4 April 24, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Marge Motes