Jeffery Smith v. Hardwick, Town Of (SPR 20251714)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 30, 2025 SPR25/1714 Ryan Witkos Town Clerk Town of Hardwick 307 Main Street Gilbertville, MA 01031 Dear Mr. Witkos: I have received the petition of Jeffery Smith appealing the response of the Town of Hardwick (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 27, 2025, Mr. Smith requested “… a complete copy of the Hardwick Bylaws.” On May 29, 2025, Mr. Smith clarified that he was seeking “… a complete, official copy of the current bylaws … the accurate MLU-approved version, preferably certified if available.” Open Petition This request is the subject of an open petition. See SPR25/1807. A determination will be issued separately within five business days of receipt of the petition. The Town responded on June 12, 2025. Unsatisfied with the Town’s response, Mr. Smith petitioned this office and this appeal, SPR25/1714, was opened as a result. Subsequent to the opening of this appeal, the Town provided a supplemental response on June 24, 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, 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

Ryan Witkos SPR25/1714 Page 2 June 30, 2025 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). The Town’s June 12th Response In its June 12, 2025 response, the Town assessed a fee of $2,500.00 to provide Mr. Smith with responsive records. The Town detailed its fee estimate as follows: [I]t will take approximately forty hours to review the records contained in the cabinet and vault referenced above to determine if the records are responsive, and another sixty hours to scan, or copy, the requested records. If I were to produce a copy of the records, you will also be charged a fee of $.05 per page. Where no other personnel work in the Clerk’s office, the lowest paid person capable of scanning or copying the requested records is me, and I am presently paid $32.58 per hour. See 950 CMR 32.07(2)(i). Where my hourly rate is in excess of $25 per hour, I will calculate the total cost of the time needed to respond to your request at $25 per hour. Please note, that at the last Decennial U.S. Census the Town had a population of 2,667 and, because the Town has less than 20,000 residents, you will be charged for all hours of work associated with this request. Upon receipt of your payment in the amount of $2,500.00, I will begin the work required to provide you with the requested records. In its June 24, 2025 response, the Town further stated: The 100-hour estimate was based upon a good faith estimate of time it would take to review almost 100 years of Town Meeting action (going back to 1927) and 60 years of Attorney General notifications of approvals and disapprovals. There are over 2,000 pages of Town Meeting records, the majority with pages being 8 ½” by 14” typed, and a large portion in cursive script to be reviewed and copied and attestation they are a true copy. Although the Town has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 100 hours of employee time, the Town has not provided sufficient explanation of why 100 hours of employee time is necessary. Specifically, the Town must clarify how it requires forty hours to search for responsive records and sixty

Ryan Witkos SPR25/1714 Page 3 June 30, 2025 hours to scan and copy the responsive records. The Town must also provide additional information regarding the tasks involved in producing the responsive records. Further, the Town is reminded it cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § l0(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee of $2,500.00 assessed in its June 12th estimate is consistent with G. L. c. 66, § 10(d). This office encourages Mr. Smith and the Town to continue communicating 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 Mr. Smith 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. Mr. Smith 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: Jeffery Smith