Timothy Moriarty v. Oxford, Town of - Town Clerk (SPR 20242534)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 19, 2024 SPR24/2534 Michelle A. Jenkins Town Clerk Town of Oxford 325 Main Street Oxford, MA 01907 Dear Ms. Jenkins: I have received the petition of Timothy Moriarty 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 August 22, 2024, Mr. Moriarty requested, “any and all surveillance, camera recordings, audio and any other means of recording, in the first floor of the town hall. From 3pm on August 21st 2024 to 9pm August 21st 2024.” Prior Petition This request was the subject of a prior petition. See SPR24/2530 Determination of the Supervisor of Records (September 12, 2024). In my September 12th determination, I found that the Town had established good cause for a time extension of 30 business days. The Town responded on September 6, 2024, which included a fee estimate. Unsatisfied with the Town’s response, Mr. Moriarty petitioned this office and this appeal, SPR24/2534, 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 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality 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 SPR24/2534 Page 2 September 19, 2024 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 September 6th Response In its September 6, 2024 response, the Town provided a fee estimate of $1050.00 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. . . . Fee Estimate It is estimated that it will cost a minimum of $1050.00 to comply with your request. That amount is broken down as follows: Employee Title of *Hourly Estimated Estimated Total Time Personnel Rate Employee Cost of Estimated Cost Copies Cost 42 hours Media $25.00/hr. $1050.00 N/A $1050.00 Production Coordinator The employee search time quoted above is charged at the *hourly rate of the lowest paid person capable of compiling the responsive records, in accordance with 950 CMR 32.07(2)(i). . . . Please note that because the Town has less than

Michelle Jenkins SPR24/2534 Page 3 September 19, 2024 20,000 residents, pursuant to the last Decennial U.S. Census, you will be charged for the first two hours of work associated with this request. . . . Upon receipt of your payment in the amount of $1050.00, check or money order, made payable to the Town of Oxford, the Town will begin the work necessary to search, segregate, and redact (where required by law) the documents you have requested. . . . [I]t is anticipated the Town shall produce the requested Town records, subject to withholding or redaction, within 15 business days of receiving payment. Please be aware that the amount of the above estimate is directly related to the broad scope of your request for records. Accordingly, should you wish to narrow the scope of your request, then [the Town] will provide you with a revised estimate. In his appeal, Mr. Moriarty asserts, “I am appealing the amount $1,050 dollars in dispute . . . . While there are a couple cameras in the scope of the request, the records all go to one server which makes for easy editing. . . . The recordings don’t need to be watched for content, but to edit the video . . . . It does not require and [sic] employee to watch all of the recordings.” Although the Town has estimated that “the work necessary to search, segregate, and redact (where required by law) the documents [Mr. Moriarty has] requested” will cost $1050.00 and take approximately forty-two (42) hours, it is unclear why the Town requires this amount of time to produce responsive records. Specifically, it is unclear from the Town’s estimate how many hours are allocated to search for the responsive recordings, how many hours are allocated to segregate the responsive recordings, and how many hours are allocated to redact the responsive recordings. It is also unclear how many responsive recordings exist and how many minutes per recording it will take to segregate and redact the responsive recording. The Town must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to searching for, segregating, and redacting the requested recordings. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, although the Town claims that it is assessing a fee for segregation and redaction required by law, it is unclear how redaction is required by law in this matter. For example, it is not clear what type of information is contained in the responsive records, and which statutes, if any, require redaction. Please note that under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). I am not aware that the Town has submitted a petition under G. L. c. 66, § 10(d)(iv). As such, I find the Town must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d).

Michelle Jenkins SPR24/2534 Page 4 September 19, 2024 Mr. Moriarty further states that his appeal “includes the extension that has been requested by the town” and asserts, “the extension would not be just, due to the time it will take to provide the information on the request.” In the prior determination, I found that the Town has established good cause for a time extension of 30 business days. See SPR23/2669. Consequently, I decline to opine on the part of Mr. Moriarty’s appeal concerning his objections to the Town’s time extension. Conclusion Accordingly, the Town is ordered to provide Mr. Moriarty 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: Timothy Moriarty