Maria Kopicki v. Amherst, Town of - Office of the Town Clerk (SPR 20242830)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 25, 2024 SPR24/2830 Susan Audette Town Clerk Town of Amherst 4 Boltwood Avenue Amherst, MA 01002 Dear Ms. Audette: I have received the petition of Maria Kopicki appealing the response of the Town of Amherst (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 23, 2024, Ms. Kopicki requested, “[a]ny communications from May 1, 2023 to the present, to or from [four identified individuals] . . . regarding Massachusetts Rehabilitation Historic Tax Credits or Standards for Rehabilitation of Historic Buildings related to the Jones Library building project[.]” The Town provided a response on August 26, 2024, and provided further responses on September 10, 2024, September 12, 2024, September 20, 2024, and October 9, 2024. Unsatisfied with the Town’s responses, Ms. Kopicki petitioned this office and this appeal, SPR24/2830, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld 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

Susan Audette SPR24/2825 Page 2 October 25, 2024 or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Town’s Responses On August 26, 2024, the Town acknowledged receipt of the request and noted, “your request has been copied to the appropriate department(s) . . . .” On September 10, 2024, the Town provided an attachment to Ms. Kopecki and stated, “I’m forwarding a file that [an identified individual] sent from his records that are responsive to your record request.” On September 12, 2024, the Town indicated that its “I.T. department is working on this request” and that it would have “a complete response for [Ms. Kopecki] soon.” On September 20, 2024, the Town provided an additional response and stated the following: I spoke with [an identified individual] in IT and he’s identified 990 emails between [two identified individuals]. . .

Susan Audette SPR24/2825 Page 3 October 25, 2024 As you may know, a town of our size cannot charge for the first 2 hours of time involved in fulfilling a public records request, but we may charge if the time involved goes over the 2 hours at a rate of no more than $25.00 per hour. We have determined from prior email searches that it takes approximately 30 seconds per email to search for any information contained therein which may be withheld or redacted under any of the exemptions of the Public Records Law. A staff member will have to go through each email to determine whether it contains any information that cannot be made public and redact it. I will be sure to let you know as soon as [an identified individual] is back in touch with me how long he expects this process to take and any cost if over the 2 hours of time allowed. On October 9, the Town provided a fee estimate of $393.75 and stated the following: Regarding your first request dated August [23rd] which was partially filled by the Town, as mentioned below, there were 990 emails identified that were responsive to the keywords used. I have learned that [an identified individual] has already spent 1 ¼ hours on this search which leaves 45 minutes of “free” time left before the Town may request payment for the remainder of the work to be done. Again, each email must be looked through for any possible information contained therein which may be withheld or redacted under any of the exemptions of the Public Records Law. We estimate the time required to go through 990 emails to be: Estimated hours to sort emails at 30 seconds per email: 8.25 hours Estimated hours to redact emails at 30 seconds per email: 8.25 hours Subtotal: 16.50 hours  Less 45 minutes .75 hours Total: 15.75 hours x $25.00/hour = $393.75 As permitted by law, the above fee estimate is based on the charge for employee search time to locate and identify responsive records is based on the hourly rate of the lowest paid person capable of compiling, segregating, and redacting where required by law, in accordance with 950 CMR 32.07(2)(i). Please note that the actual cost of producing the records may vary once the Town begins the work necessary to respond to your request. Current appeal In her appeal petition, Ms. Kopecki states, “I did receive partial fulfillment of the earlier request . . . . However, I have not yet received records. . . [regarding two identified individuals].

Susan Audette SPR24/2825 Page 4 October 25, 2024 The latest response I had from the Town Clerk indicated that they required a fee of nearly $400 to sort and redact the emails . . . .” Mr. Kopecki further states, “I think that the Town is obligated to provide these files promptly and should not be charging any fees to do so.” 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 Ms. Kopecki submitted a public records request on August 23, 2024, and the Town provided a fee estimate on October 9, 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 Ms. Kopecki’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. This office encourages Ms. Kopecki and the Town to continue to communicate to facilitate providing records more efficiently and affordably. Ms. Kopecki may wish to narrow the parameters of her request 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) (a 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 municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Ms. Kopecki with a response to her 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: Maria Kopicki