Richard Nardone v. Wenham, Town of (SPR 20251067)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 22, 2025 SPR25/1067 Dianne K. Bucco Town Clerk Town of Wenham 138 Main Street Wenham, MA 01984 Dear Ms. Bucco: On April 17, 2025, this office received your petition on behalf of the Town of Wenham (Town) seeking a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Town furnished a copy of the petition to the requestor, Richard Nardone. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On April 7, 2025, Mr. Nardone requested: [1] Any and all records written, electronic, meeting, and phone call transcripts pertaining to Main Street improvement project and Route 1A intersection project[;] [2] All communications between planning board, DPW, MassDOT, Town Counsel, Bayside Engineering, Select Board, Town Administrator, State Reps and Senator, current and previous office holders to be included, 2018-current[;] [3] Any and all records written and electronic pertaining to development of warrant item 22 in the 2025 Warrant Book[.] 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). 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 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

Dianne K. Bucco SPR25/1067 Page 2 April 22, 2025 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 determination 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). Current Petition In its petition, the Town requests to charge a fee of $66.92 per hour, and provides the following in support of its request:

Dianne K. Bucco SPR25/1067 Page 3 April 22, 2025 The DPW director responding with an estimated fee of 2 hours research charged at his rate $66.92.When I explained the $25/hour cap, he responded with the following: “It’s my emails with the DOT and the [sic] Redsident. The lowest paid employee could not do it.” In light of the Town’s petition, I find the Town has not met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Conclusion As described above, the Town has not met its burden to assess a fee in excess of $25.00 per hour. This office encourages Mr. Nardone and the Town to continue to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). Sincerely, Manza Arthur Supervisor of Records cc: Richard Nardone