Rachel Bonds v. Danvers, Town of - Town Clerk (SPR 20250580)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 3, 2025 SPR25/0580 Catherine S. Ellsworth Records Access Officer Town of Danvers One Sylvan Street Danvers, MA 01923-2790 Dear Ms. Ellsworth: On February 28, 2025, this office received the petition of James Donnelly, Esq., of Murphy, Hesse, Toomey & Lehane, LLP, on behalf of the Town of Danvers (Town) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the Town furnished a copy of the petition to the requestor, Rachel Bonds, of SmartProcure. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On February 13, 2025, Ms. Bonds requested “any and all purchasing records from 01/01/2019 to current.” Specifically, Ms. Bonds sought: [1] Purchase order number. If purchase orders are not used a comparable substitute is acceptable, i.e., invoice, encumbrance, or check number [2] Purchase dates (month, day, year) [3] Line item details (Detailed description of the purchase) [4] Line item quantity [5] Line item price [6] Vendor ID number, name, address, contact person and their email address Petition to assess fees – Municipalities The Supervisor may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. 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

Catherine S. Ellsworth SPR25/0580 Page 2 March 3, 2025 In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my understanding that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 2 (two) 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).

Catherine S. Ellsworth SPR25/0580 Page 3 March 3, 2025 Current Petition In its petition, the Town requests that “it be permitted to charge $25 per hour to search, review, segregate and potentially redact records that are responsive to the request[,]” and argues the following in support of its request: ...The Town anticipates that the detailed descriptions of purchases within the responsive purchase orders may contain attorney-client privileged information, cybersecurity product information relating to the cybersecurity of the Town protected by Exemption (n) of the Public Records Law, and other exempt information. The Town also anticipates that the purchase orders contain information protected from disclosure by Exemptions (c) and (o) of the Public Records Law, including workers compensation and other employee reimbursements which constitute medical and personnel information, as well as any personal information (i.e., personal cell phones numbers, email addresses, and home addresses of employees). Each purchase order needs to be reviewed to determine whether there is any information that is exempt from disclosure contained within. Based on the information provided in its fee petition, I find the Town has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without segregation or redaction. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, I find the Town has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Town may assess a fee for segregation and redaction. Additionally, I encourage the parties to communicate further to enable the Town to provide records in an efficient and affordable manner. Please note, Ms. Bonds has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Rachel Bonds