Maria Kopicki v. Amherst, Town of - Office of the Town Clerk (SPR 20250385)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 14, 2025 SPR25/0385 Susan Audette Town Clerk Town of Amherst 4 Boltwood Avenue, Town Hall Amherst, MA 01002 Dear Ms. Audette: I have received the petition of Maria Kopicki appealing the response of the Town of Amherst (Amherst) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 13, 2025, Ms. Kopicki requested all documents and email communications “… regarding the environmental (NEPA/MEPA) review for the Jones Library building project.” The Town provided responses on January 28, February 5, and February 7, 2025. Unsatisfied with the responses, Ms. Kopicki petitioned this office and this appeal, SPR25/0385, 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

Susan Audette SPR25/0385 Page 2 February 14, 2025 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 Responses In its January 28, 2025 response, the Town provided Ms. Kopicki with a number of documents responsive to her request, and assessed a fee of $1,538.00 to provide 3,692 responsive emails. On February 4, 2025, Ms. Kopicki modified her request for email communications to seek only the emails of two identified individuals containing the keywords “NEPA” and “JONES,” from November 2023 to the date of the request. In its February 5, 2025 response, the Town assessed a fee of $208.00 to provide 500 responsive emails. The Town estimated that it would require 0.25 hours to create a search, 0.25 hours to compile the results, 4.17 hours to “sort,” and 4.17 hours to redact. The Town assessed a rate of $25.00 per hour to perform these tasks. In an email communication to Ms. Kopicki on February 7, 2025, the Town clarified that its proposed redactions would remove personal information pursuant to Exemption (c) of the Public Records Law. The Town further clarified that its time estimate was for a total of 8.34 hours, and that it was not assessing a fee for the first two hours of employee time, but that it had already expended half an hour of employee time responding to the request. Accordingly, the Town’s revised fee estimate sought to charge for 6.84 hours of staff time, at a rate of $25.00 per hour, totaling $171.00. Reasonableness of the Fee Estimate Although the Town has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 8.84 hours of employee time, the Town has not provided sufficient explanation of why 8.84 hours of employee time is necessary. Specifically, it is unclear how the Town is permitted to charge for employee time dedicated to “sorting” the responsive records, nor for the half hour of employee time it has already spent responding to the request. The Town must explain the tasks involved in sorting the responsive records, the tasks performed in the half hour of employee time it has already expended, and how G. L. c. 66, § 10(d) permits the assessment of a fee for the performance of those tasks. Further, based on the Town’s response, it appears to be assessing a fee for redaction under Exemption (c) of the Public Records Law. 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). I am not aware that the Town has submitted a petition under G. L. c. 66, § 10(d)(iv). As such, the Town may not assess a fee for the employee time spent to redact records under Exemption (c).

Susan Audette SPR25/0385 Page 3 February 14, 2025 The Town must also clarify whether $25.00 per hour is the hourly rate of the lowest paid employee who has the skill required to search for, compile, segregate, redact, or reproduce the requested records. For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee of $171.00 assessed in its February 7th estimate is consistent with G. L. c. 66, § 10(d). This office encourages Ms. Kopicki 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. Kopicki 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. Kopicki may appeal the substantive nature of the Town’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Maria Kopicki