John J. Clifford v. West Boylston, Town of - Town Clerk (SPR 20251308)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 15, 2025 SPR25/1308 Daymian R. Bartek Town Clerk Town of West Boylston 140 Worcester Street West Boylston, MA 01583 Dear Ms. Bartek: I have received the petition of John J. Clifford, Esq., of Clifford and Kenny, LLP, appealing the response of the Town of West Boylston (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 11, 2025, Attorney Clifford requested “[any] and all communications sent to or from [an identified individual] since January 22, 2025 through April 1, 2025[.]” The Town responded on April 25, 2025. Unsatisfied with the Town’s response, Attorney Clifford petitioned this office and this appeal, SPR25/1308, 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

Daymian R. Bartek SPR25/1308 Page 2 May 15, 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 April 25th Response In its April 25, 2025 response, the Town assessed a fee of $1,500.00 to provide Attorney Clifford with responsive records. The Town detailed its fee estimate as follows: Title Hours Cost Records Access Officer, 30 hours $750.00 total/ reduced to search for responsive records $25.00/hour, as required. in response to the request Information Technology 10 hours $250.00 total/ reduced to Consultant, search for $25.00/hour, as required. responsive records in response to the request Town Counsel – segregation 20 hours $500.00 total/ reduced to required by law for [the $25.00/hour, as required. attorney-client] privilege TOTAL $1500.00 The Town confirmed 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. The Town further confirmed that its population was less than 20,000 as of the last decennial census, and consequently, that it was assessing a fee for all time spent responding to the request. 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 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

Daymian R. Bartek SPR25/1308 Page 3 May 15, 2025 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 the process of compiling, reviewing, and preparing responsive documents for production will take 40 hours of search time and 20 hours of segregation and redaction time, the Town has not provided sufficient explanation of why this amount of employee time is necessary. The Town must provide additional information regarding the tasks necessary to produce the responsive records. The Town must also clarify how many pages of records it possesses which are responsive to the request. For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee of $1,500.00 assessed in its April 25, 2025 estimate is consistent with G. L. c. 66, § 10(d). This office encourages Attorney Clifford 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 Attorney Clifford 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. Attorney Clifford 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: John J. Clifford, Esq.