Kate O'Brien v. Truro, Town of (SPR 20241170)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 2, 2024 SPR24/1170 Noelle Scoullar Records Access Officer Town of Truro 24 Town Hall Road Truro, MA 02666 Dear Ms. Scoullar: I have received the petition of Kate O’Brien 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 April 2, 2024, Ms. O’Brien requested the following documents and communications related to the possible redesign of the DPW: [1.] All communications and documents regarding the need to or ideas for the redesign of Weston & Sampson’s last publicly presented proposal for a new DPW last fall. [2.] All communications and documents related to budgets and financial documents regarding the need to or ideas for the redesign of the above-referenced proposal. [3.] All communications and documents regarding possible configuration, layout, topological considerations, costs, traffic, safety, environmental, and other considerations (including those relating to abutters and abutting residential neighborhoods) of placing the Weston and Sampson plan referenced above or any modification thereof now under consideration next to the current Public Safety Facility. [4.] Any documents confirming the need for construction of a fence around a proposed well at Snow’s Field. [5.] The results of the last well water tests at the current well at the public safety facility and results of any soil tests conducted on the Rt 6 lot proposed for the DPW. 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

Noelle Scoullar SPR24/1170 Page 2 May 2, 2024 The Town provided responses on April 4, April 9, and April 16, 2024. Unsatisfied with the responses, Ms. O’Brien petitioned this office and this appeal, SPR24/1170, 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 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). The Town’s April 4th, April 9th, and April 16th responses In its April 4, 2024 response, the Town sent a series of documents, asked for an extension of time, and asked if there were any key words to narrow the search for responsive records. Ms. O’Brien agreed to a time extension and noted that she was unable to offer search words. In its April 9, 2024 response, the Town sent further documents and noted that it was continuing to search for more responsive records. In its April 16, 2024 fee estimate, the Town assessed a fee of $1,600.00 to produce responsive records based upon 64 hours of work. 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 noted, “[t]he Town of Truro 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.” The Town provided an estimate as follows: 1 hour: IT Department Staff (to locate or convert electronic information on Town e-mail servers using appropriate search terms)

Noelle Scoullar SPR24/1170 Page 3 May 2, 2024 62 hours: Staff in the Town Manager’s Office (to search for responsive electronic and hard copy records) 1 hour: Staff in the Town Clerk’s Office (to search for responsive electronic and hard copy records) The Town stated this includes a total of 7,488 records to review and estimated the time based on a speed of 120 documents per hour. The Town noted that each hour would be charged at a rate of $25.00 per hour. Although the Town has indicated that the time to search for responsive documents results in a calculation of 64 total hours based upon 7,488 records to search, it is unclear how the Town requires this many hours to search for the responsive records. Additionally, it is uncertain if the 64 hours include any hours allocated for segregation and redaction of the records. In addition, it is not clear what tasks are involved to prepare responsive records for production. 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). I encourage Ms. O’Brien and the Town to communicate in order to facilitate producing records efficiently and affordably. Ms. O’Brien may wish to include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Town must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality 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 agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Ms. O’Brien 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: Kate O’Brien