Kate O'Brien v. Truro, Town of - Town Clerk (SPR 20250365)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 12, 2025 SPR25/0365 Angie Sprang Records Access Officer 24 Town Hall Road Town of Truro Truro, MA 02666 Dear Ms. Sprang: I have received the petition of Kate O’Brien appealing the response of the Town of Truro (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 2, 2025, Ms. O’Brien requested the following records related to the design and placement of a new Department of Public Works “since the STM/ATM meetings last [s]pring”: [1] All communications and documents [between] [four identified individuals] and any and all Town officials, employees, committee members, contractors or subcontractors … regarding any aspect of the proposed DPW[;] [2] The document read by [an identified individual] during the Ad Hoc Building Committee of January 30, 2025[;] [3] All communications and documents regarding the reasons for and the fact of [an identified individual]’s recusal from the Ad Hoc Building Committee due to a purported or possible conflict of interest. The Town provided a response on February 5, 2025. Unsatisfied with the response, Ms. O’Brien petitioned this office and this appeal, SPR25/0365, 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). 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

Angie Sprang SPR25/0365 Page 2 February 12, 2025 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). 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 February 5th Response In its February 5, 2025 response, the Town assessed a fee of $725.00 to provide the responsive records, detailed as follows: Title Hours Per Hour Cost Total IT 3 hours (to locate or convert Reduced to $75 Department electronic information on Town e- $25.00 per hour, mail servers using appropriate as required. search terms) Town 4 hours (to search for responsive Reduced to $100 Manager’s electronic and hard copy records) $25.00 per hour, Office as required. Public Works 4 hours (to search for responsive Reduced to $100 Department electronic and hard copy records) $25.00 per hour, as required. Town Clerk’s 8 hours (to search for responsive Reduced to $200 Office electronic and hard copy records) $25.00 per hour, as required. Records 10 hours (to search for and review Reduced to $250 Access responsive electronic and hard $25.00 per hour, Officer copy records) as required. Total estimated time to review $725 approximately an unknown but substantial # of documents for privilege (Total search time estimated at 29 hours @ $25/hour) TOTAL $725

Angie Sprang SPR25/0365 Page 3 February 12, 2025 In its response, the Town stated that because it had fewer than 20,000 residents as of last decennial census, it would be assessing a fee for all time associated with responding to the request. The Town further stated that the lowest paid employee with the skill necessary to respond to the request was compensated at a rate greater than $25.00 per hour. Although the Town has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 29 hours of employee time, the Town has not provided sufficient explanation of why 29 hours of employee time is necessary. Specifically, it is unclear why each of the named department/offices require the listed number of hours to search for responsive records. The Town must explain the tasks involved in conducting this search, and how G. L. c. 66, § 10(d) permits the assessment of a fee for the performance of those tasks. Additionally, where the Town has indicated that its Records Access Officer requires 10 hours to “search for and review” the responsive records “for privilege[‘]” the Town must clarify whether it intends to segregate and redact the responsive records. If the Town intends to redact responsive records, it must clarify how much time is required to do so, how many pages of responsive records it expects to review for exempt material, and under what “privilege” it intends to perform the redactions. 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 pursuant to 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). For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee of $725.00 assessed in its February 5, 2025 estimate is consistent with G. L. c. 66, § 10(d). This office encourages Ms. O’Brien and the Town 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, the Town is ordered to provide Ms. O’Brien with a response to the 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. Ms. O’Brien may appeal the substantive nature of the Town response within ninety days. See 950 C.M.R. 32.08(1).

Angie Sprang SPR25/0365 Page 4 February 12, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Kate O’Brien