John Wagner v. Holyoke, City of - City Clerk (SPR 20243259)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 17, 2024 SPR24/3259 Lisa A. Ball, Esq. City Solicitor City of Holyoke 20 Korean Veterans Plaza, Room 204 Holyoke, MA 01040 Dear Attorney Ball: I have received the petition of John Wagner appealing the response of the City of Holyoke (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 25, 2024, Mr. Wagner requested “[a]ll W4 forms submitted by [an identified individual] during [their] employment with the City of Holyoke.” The City provided a response on October 29, 2024. Unsatisfied with the response, Mr. Wagner petitioned this office and this appeal, SPR24/3259, 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) 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). 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

Lisa A. Ball, Esq. SPR24/3259 Page 2 December 17, 2024 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 City’s October 29th Response In its October 29, 2024 response, the City states: … it will take a minimum of 4 hours, however it could be more in order to locate and make copies of the documents requested. The fee is waived for the first 2 hours. In accordance with the Public Records Law, the hourly fee assessed will be $25.00 per hour to perform this task, which is based on the hourly fee for the lowest paid professional in the office. Based on this information the fee will be a minimum of $50.00 based on an estimate of four hours to locate these documents. In an email communication to this office on December 4, 2024, the City further clarified its fee estimate, stating: We have researched all of the payroll records in order to respond to this request. To date we have spent in excess of 4 hours on this. Please note that W4s are kept with records for each individual payroll, not in an employee’s personal file. In addition, the IRS record keeping requirements, listed below, instruct employers to maintain W4s for 4 years. The request asked us to go back farther than that, specifically to March 12, 2017, which we have also started to do, in the event we still have them. Some of the records requested have been taken off site as part of the municipal digitization project. We have requested the company to pull these files but that requires additional time and comes at additional expense. We expect those documents this week but will not know the full cost associated until they are pulled. Fee Waivers In his December 3, 2024 petition to this office, Mr. Wagner requested that the assessed fee be waived, as “… the City may be in violation regarding this matter.” G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee.

Lisa A. Ball, Esq. SPR24/3259 Page 3 December 17, 2024 Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). Reasonableness of the Fee Estimate Where the City has explained the amount of time it requires to locate the requested records and confirmed that the lowest paid individual with the skill necessary to perform those tasks is paid $25.00 per hour, I find that the City has met its burden to explain how it has provided a reasonable fee estimate for production of the responsive records. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). This office encourages Mr. Wagner and the City to communicate further in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(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 the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate. Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Wagner is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: John Wagner