Maria Kopicki v. Amherst, Town of - Office of the Town Clerk (SPR 20251569)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 10, 2025 SPR25/1569 Amber Martin Assistant Town Clerk Town of Amherst 4 Boltwood Avenue Amherst, MA 01002 Dear Ms. Martin: On June 4, 2025, this office received your petition on behalf of the Town of Amherst 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, Maria Kopicki. G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). On May 20, 2025, Ms. Kopicki requested, “any communications 1) to or from [an identified individual] 2) to or from [an identified individual] regarding the leasing of 101 University Drive, Amherst MA from September 1, 2024 to the present.” In an email sent to our office on Jun 6, 2025, Ms. Kopicki objected to the Town’s petition. Petition to Assess Fees – Municipalities The Supervisor of Records (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 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 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

Amber Martin SPR25/1569 Page 2 June 10, 2025 redacting 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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, “we be allowed to assess a fee for the time to search the 817 e-mails…” In support of its petition, the Town provides the following information: We immediate[ly] set about pulling all the e-mails and found that there were 817 e-mails which met the requester’s description. This is a considerable number of e- mails which will require review for possible redaction of any information that may be exempt under the Public Records law. We have determined from past records requests that it takes approximately 1 minute per e-mail to review. Therefore, this request will take approximately 13.62 hours to complete. In an email to our Office on June 9, 2025, the Town stated, “I’d like [to] make note that records in this public records request are specifically EXEMPT according to Exemption (a) of

Amber Martin SPR25/1569 Page 3 June 10, 2025 Massachusetts Public Records Law. This exemption applies to records that are ‘specifically or by necessary implication exempted from disclosure by statue.’” Please be advised, records custodians may assess fees for time spent segregating or redacting records where such segregation or redaction is required by law. See 950 C.M.R. 32.07(2)(d) (stating that fee for segregation or redaction is permissible when approved by Supervisor or when required by law). Where the Town only seeks to assess fees as required by law under Exemption (a) of the Public Records Law, I find it unnecessary to opine on whether the Town may assess fees for segregating and redacting the records. Conclusion As described above, I find it is unnecessary to opine on the Town’s petition for permission to charge for time spent segregating or redacting responsive records. Please note, Ms. Kopicki 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: Maria Kopicki