Commonwealth Transparency v. Barnstable, Town of - Town Clerk (SPR 20250394)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 14, 2025 SPR25/0394 Ann Quirk Town Clerk Town of Barnstable 367 Main Street Hyannis, MA 02601 Dear Ms. Quirk: I have received the petition of Commonwealth Transparency (requestor) appealing the response of the Town of Barnstable (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 1, 2025, the requestor sought communications relating to “[t]he Commonwealth of Massachusetts’ Emergency Shelter Policy, specifically, but not limited to Statement(s) on ‘Changes to the State’s Emergency Shelter Policy’” between October 20, 2024 and December 10, 2024. The Town provided a response on February 11, 2025. Unsatisfied with the Town’s response, the requestor petitioned this office and this appeal, SPR25/0394, was opened as a result. Subsequent to the opening of this appeal, the Town provided a further response on February 11, 2025. 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

Ann Quirk SPR25/0394 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 February 11th Responses In its initial February 11, 2025 response, the Town assessed a fee of $145.00 to provide the requestor with responsive records. In its subsequent February 11, 2025 response, the Town clarified its fee estimate as follows: TIME for I.T. TO SEARCH TOWN 1.0 Hours @ $25.00 per hour $0.00 OF BARNSTABLE EMAIL Server (First 2 hours No Charge) INITIAL I.T. RESULTS = 136 Emails 4.53 Hours – 2nd Hour Free $88.25 Estimated Hours for Review for 3.53 Hours @ $25.00 per responsiveness = 4.53 hours hour = (2 minutes per email) ESTIMATED 2.27 Hours @ $25.00 per $56.75 SEGREGATION/REDACTION TIME hour = FOR ATTORNEY-CLIENT PRIVILEGE = 2.27 hours (1 minute per email) TOTAL ESTIMATED COST $145.00 In its responses, the Town confirmed that the lowest paid employee with the skill necessary to respond to the request is compensated at a rate greater than $25.00 per hour. In a February 11, 2025 email communication to this office, the requestor objected to the Town’s claims of attorney client-privilege, and sought the waiver of any fees associated with the request. Please be advised that where the Town has yet to produce the records, I find that the matter of the proposed redactions cannot be addressed at this time, as the contents of these records are unclear. Once responsive records are provided, the requestor may appeal the substantive nature of the Town’s response within ninety calendar days. See 950 C.M.R. 32.08(1). Fee Waivers 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

Ann Quirk SPR25/0394 Page 3 February 14, 2025 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. 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 Although the Town has estimated that reviewing the results of its email search for responsiveness will take 4.53 hours of employee time, the Town has not provided sufficient explanation of why 4.53 hours of employee time is necessary. Specifically, the Town must explain how it requires 2 minutes to review each email communication for responsiveness to the request, and how G. L. c. 66, § 10(d) permits the assessment of a fee for the employee time dedicated to said review. For the reason discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee of $145.00 assessed in its February 11th estimate is consistent with G. L. c. 66, § 10(d). This office encourages the requestor 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 the requestor 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. The requestor may appeal the substantive nature of the Town’s response within ninety days. See 950 C.M.R. 32.08(1).

Ann Quirk SPR25/0394 Page 4 February 14, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency Allison Cogliano, Esq.