Open Commonwealth v. Middleboro Town Clerk (SPR 20241204)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 6, 2024 SPR24/1204 Pamela Menconi Town Clerk Town of Middleborough 20 Centre Street Middleborough, MA 02346 Dear Ms. Menconi: I have received the petition of Commonwealth Transparency (“requestor”) appealing the response of the Town of Middleborough (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 6, 2024, the requestor sought: …documents/records in the possession or under the control of your school/district or town/city for the time period January 1, 2018 through April 5, 2024: [1.] Any and all contracts, communications, or documents of any kind with the following: Accountedge LLC – 3 Meadowlark Farm Lane, Middleton, MA 01949 USA [two identified individuals] [at identified addresses]. [2.] Any and all payments made to: Accountedge LLC – 3 Meadowlark Farm Lane, Middleton, MA 01949 USA [two identified individuals] [at identified addresses]. [3.] Any and all conflict of interest documents for: Accountedge LLC – 3 Meadowlark Farm Lane, Middleton, MA 01949 USA [two identified individuals] [at identified addresses]. The Town provided a response on April 22, 2024. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR24/1204, 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 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

Pamela Menconi SPR24/1204 Page 2 May 6, 2024 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 22nd Response In its April 22, 2024 response, the Town provided a fee estimate for a total of $250.00 to provide responsive records. The Town estimated that it would require a total of 12 hours to locate responsive records before production. The Town further advised that the employees’ time to search and redact are as follows: School Department Staff…2 hours (to locate electronic information, voicemails, and hard copy records in school’s files) Town Manager’s and Select Board’s Staff…2 hours (to locate electronic information, voicemails, and hard copy records in Town’s files) Tax Collector…2 hours (to locate electronic information, voicemails, and hard copy records in Town’s files) Accountant…2 hours (to locate electronic information, voicemails, and hard copy records in Town’s files) Town Clerk’s Office…2 hours (to locate electronic information, voicemails, and hard copy records in Town’s files) IT Department…2 hours (to locate electronic information, such as responsive emails and calendar entries, and convert them to formats capable of production) 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 “…more than 20,000 residents as of the last U.S. decennial census and therefore, you will not be charged for the first two hours necessary to

Pamela Menconi SPR24/1204 Page 3 May 6, 2024 respond to this request.” Accordingly, the Town noted that each hour is charged at a rate of $25.00 per hour, with the exception of the first two hours which are free. Although the Town has provided an estimate of 12 hours to search for documents. It is unclear how the Town requires 12 hours to search for the responsive records and whether the 12 hours include tome for segregation and redaction. Also, the quantity of estimated responsive records is unclear as well as the amount of time to review each record. 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). 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 the requestor and the Town to communicate in order to facilitate producing records efficiently and affordably. The requestor 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 a response to the requestor, 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. The requestor 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: Commonwealth Transparency