Gayle Ober v. Hopkinton, Town of (SPR 20241976)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 17, 2024 SPR24/1976 Connor Degan Town Clerk Town of Hopkinton 18 Main Street Hopkinton, MA 01748 Dear Mr. Degan: On July 10, 2024, this office received your petition on behalf of the Town of Hopkinton (Town) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the Town furnished a copy of the petition to the requestor, Gayle Ober. G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). On June 21, 2024, Ms. Ober requested the following: [1.] All email communications between the Town of Maynard and the Town of Hopkinton . . . to include [identified email addresses] [2.] All email communications between the Town of Hopkinton and [identified email address] [3.] All email communications between the Town of Hopkinton and [an identified individual] [4.] All email communications mentioning [an identified individual] [5.] All email communications mentioning [an identified individual] [6.] All email communications between the Town of Hopkinton and [identified email address] [7.] All email communications mentioning [an identified individual and their business] [8.] All email communications mentioning Kroll [9.] All email communications mentioning [identified individuals] [10.] All email communications mentioning both [an identified individual] and Peace Officer Standards and Training [11.] All email communications mentioning both [an identified individual] and Massachusetts Police Accreditation Commission[.] 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

Connor Degan SPR24/1976 Page 2 July 17, 2024 Petition to Assess Fees – Municipalities 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). 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 2 (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).

Connor Degan SPR24/1976 Page 3 July 17, 2024 Conclusion The Town submitted its petition on July 10, 2024, more than ten business days after receipt of the request. In light of the fact that the Town has not demonstrated it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records cannot be granted. 950 C.M.R. 32.06(4)(g). Please be advised, however, this does not preclude the Town from charging for segregation and redaction that is required by law. I encourage the parties to communicate further to enable the Town to provide records in an efficient and affordable manner. Sincerely, Manza Arthur Supervisor of Records cc: Gayle Ober