Robert King v. Oxford, Town of - Town Clerk (SPR 20241617)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 12, 2024 SPR24/1617 Michelle A. Jenkins Town Clerk Town of Oxford 325 Main Street Oxford, MA 01907 Dear Ms. Jenkins: I have received the petition of Robert J. King appealing the response of the Town of Oxford (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 6, 2024, Mr. King requested the following records: [1] Any tax incentive program or TIP agreement the Town of Oxford has agreed to from January 1, 2010 to March 6, 2024 as well as any such predating agreement that is still in effect[;] [2] Any payment in lieu of taxes or PILOT agreement the Town of Oxford has agreed to from January 1, 2010 to March 6, 2024 as well as any such predating agreement that is still in effect[;] [3] Any labor contract or agreement between the Oxford Police Association and/or Massachusetts Coalition of Police, Local 173 that is currently in effect. Previous Petition This request was the subject of a previous Petition. See SPR24/0793 Determination of the Supervisor of Records (March 19, 2024). In my March 19th determination, I found that the Town had established good cause for a time extension of 30 business days. The Town provided a response on May 1, 2024, providing a fee estimate. Unsatisfied with the response, Mr. King petitioned this office and this appeal, SPR24/1617, 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 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

Michelle Jenkins SPR24/1617 Page 2 June 12, 2024 ($.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 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 May 1st Response In its May 1, 2024 response, the Town provided a fee estimate of $175 and stated the following: The Town has reviewed your request and anticipates there are records that are responsive to your request. Responsive records that are subject to mandatory disclosure under the Public Records Law will be provided upon payment of any applicable fees (noted below). Where permitted by law, however, such records or material contained therein may be withheld or redacted under any of the exemption to the Public Records Law, other applicable provisions of law, and/or common law privileges, such as attorney-client privilege. See, e.g., G.L. c. 4, §7(26); Suffolk Construction Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-450 (2007); 950 CMR 32.06(3). The Town reserves the right to identify and assert any other applicable exemptions, as it conducts further search and review. In accordance with G.L. c. 66, §10(b)(iv), nothing herein shall limit the Town’s ability to redact or withhold information with state or federal law. Additionally, the Town breaks down its fee estimate as follows: Employee Title of *Hourly Estimated Estimated Total Time Personnel Rate Employee Cost of Estimated Cost Copies Cost 7 hours Town Clerk $25.00/hr. $175.00 $0 $175.00 Current Appeal In his appeal petition, Mr. King states, “[t]he town did not provide an initial response

Michelle Jenkins SPR24/1617 Page 3 June 12, 2024 within the requirements of M.G.L. Ch. 66 Section 10 and therefore cannot assess a fee for production of the records… [the Town] CC’ed the requestor (myself) on a petition to the Supervisor of Public Records for more time on 3-14-24 (attached). This petition did not include numerous requirements for an initial response as stated in M.G.L. Ch. 66 Section 10 (b). For example, it was not addressed to the requestor, did not include ‘an itemized, good faith estimate of any fees that may be charged to produce the records’, nor did it ‘include a statement informing the requestor of the right of appeal’…I respectfully request that the Supervisor of Public Records find that the Oxford RAO did not meet the requirements to assess a fee for the production of the requested records…” G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Mr. King submitted a public records request on March 6, 2024, and the Town provided a fee estimate on May 1, 2024, I find that it is unclear whether the Town complied with G. L. c. 66, § 10(e). Specifically, the Town must demonstrate whether it provided a response to Mr. King’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. This office encourages Mr. King and the Town to continue to communicate to facilitate providing records more efficiently and affordably. Mr. King may wish to narrow the parameters or include 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 Mr. King with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: Robert J. King