Patrick Courtney v. North Brookfield, Town of (SPR 20252859)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 7, 2025 SPR25/2859 Tara M. Hayes Town Clerk Town of North Brookfield 215 North Main Street North Brookfield, MA 01535 Dear Ms. Hayes: On September 30, 2025, this office received your petition on behalf of the Town of North Brookfield (Town) seeking a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). On September 29, 2025, Mr. Courtney requested “certified payroll records for all work performed on the Fire Station and DPW Reno Project [and] . . . the prevailing wage rate sheet for this project.” 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 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. 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

Tara M. Hayes SPR25/2859 Page 2 October 7, 2025 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 for Fees in Excess of $25.00 per Hour In its petition, the Town states the following concerning its request to charge a fee in excess of $25.00 per hour: The project manager . . . will be compiling this information. He estimates it will take approximately two (2) hours to complete the request, including the redaction of personal information as required by law, as well as the removal of certifications, OSHA cards, and other non‐responsive materials. [The Project Manager]’s hourly rate is $290, which will be billed to the Town. In accordance with the Public Records Law, I am respectfully requesting approval from the Supervisor of Records to exceed the $25/hour maximum so that we may charge the requestor the actual cost of responding.

Tara M. Hayes SPR25/2859 Page 3 October 7, 2025 Certified Payroll Records The Town is advised that disclosure of certified payroll records is governed by G. L. c. 149, § 27B, which states in relevant part: Every contractor, subcontractor or public body engaged in said public works by an agency ... or municipality or any subdivision thereof to which sections twenty- seven and twenty-seven A apply shall keep a true and accurate record of all mechanics and apprentices, teamsters, chauffeurs and laborers employed thereon, showing the name, address and occupational classification of each such employee on said works, and the hours worked by, and the wages paid to, each such employee, and shall submit weekly to the awarding authority by mail, first class postage prepaid, or by electronic mail, certified payroll records that shall consist of a complete copy of those records ... . . . The above-mentioned copies of payroll records and statements of compliance shall be available for inspection by any interested party filing a written request to the awarding authority for such inspection and copying. G. L. c. 149, § 27B. The statute provides that copies of certified payroll records must be available for inspection and copying by any interested party filing a written request to the awarding authority. Id. The statute does not limit disclosure, but rather evidences a legislative intent to make these records available for inspection. Where the language of the statute does not restrict disclosure, the statutory right of citizens to inspect under the Public Records Law prevails. See Att’y Gen. v. Collector of Lynn et al., 377 Mass. 151, 154 (1979) (statute providing that records be available to town officials does not exempt records since statute does not limit disclosure to the public); see also G. L. c. 4, § 7(26)(a) (exempting those records which are specifically or by necessary implication exempt from disclosure by statute). G. L. c. 149, § 27B evidences a legislative intent to make that information which is required to be provided by a contractor to the awarding authority open to public inspection. Further, in a 2002 Superior Court case, a construction company hired for a public construction project for the Massachusetts Water Resources Authority (MWRA) sought injunctive relief by asserting a privacy claim under Exemption (c) of the Public Records Law to prevent disclosure of the addresses and telephone numbers of the workers listed on the certified payroll records after the Supervisor of Records issued an order to the MWRA to disclose the records to the requesting party. See D’Amico, Inc., et. al. v. Massachusetts Water Resources Authority, Suffolk County Superior Court Docket No. 0284-CV-00369 (Nov. 6, 2002). In his April 29, 2002 finding, Judge Thomas Conley denied the plaintiff’s motion for a preliminary injunction, stating, “[t]here is very little likelihood, if any, of the plaintiff prevailing in this matter, and there has been no showing of irreparable harm.” Id.

Tara M. Hayes SPR25/2859 Page 4 October 7, 2025 Consequently, I find that where the addresses of the individuals who are the subjects of the certified payroll records are public under G. L. c. 149, § 27B, the Town has not met its burden to explain how the response could not be prudently completed without assessing a fee in excess of $25 per hour. Consequently, permission to assess fees in excess of $25 per hour cannot be granted. Please note, however, this determination does not preclude the Town from charging for segregation and redaction that may be required by law under Exemption (a), at a rate not to exceed $25 per hour. Please note, Mr. Courtney 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: Patrick Courtney