Eric Richards v. Auburn, Town of - Town Clerk (SPR 20253168)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 12, 2025 SPR25/3168 Ginger Buteau Town Clerk Town of Auburn 104 Central Street Auburn, MA 01501 Dear Ms. Buteau: I have received the petition of Eric Richards appealing the response of the Town of Auburn (Town) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On October 6, 2025, Mr. Richards sought the following for the period of January 1, 2024 through the date the request is processed: [1] Contracting and Awards [a] All executed contracts, task order, or purchase orders for roadway paving, resurfacing, milling and overlay, full-depth reclamation, chip seal, cape seal, micro-surfacing, crack sealing, and related street/ sidewalk/ curb/ADA ramp work[;] [b] All contract amendments/change orders, extensions, and final acceptance/closeout documents[;] [c] Notices to proceed, substantial completion, and final completion certificates[;] [d] Any warranty/guarantee provisions and records of warranty claims[;] [2] Bids and Procurement [a] Invitations for Bids/IFBs (plans and specifications if available), addenda, place holder lists, and pre-bid attendance sheets[;] [b] Bid tabulations showing itemized unit prices and totals for all bidders, engineer’s estimates, and award memos/criteria[;] [c] Any on-call/requirements contracts used for paving or surface treatments, including executed task orders issued under such contracts[;] [3] Project Lists and Quantities [a] For each paving/surface treatment project in the period, a list or report showing at least: project identifier; street name and from/to limits; treatment type; lane count; typical width; length; area (square yards 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

Ginger Buteau SPR25/3168 Page 2 November 12, 2025 square feet); milling depth and tonnage; hot-mix asphalt tonnage by lift; tack/bond quantities[;] structures adjusted; curb/sidewalk/ramps quantities; pavement markings; drainage items; mobilization; police details if tracked; total cost; contract used; contractor name; start and completion dates[;] [4] Costs and Unit Prices [a] Itemized pay item schedules with unit prices and final paid quantities[;] [b] Any internal or vendor reports showing cost per square foot, cost per square yard, cost per lane-mile/mile, and cost per ton for the period[;] [c] Monthly progress payment applications and final pay estimates[;] [5] Funding and Reimbursements [a] Funding source(s) per project (local, Chapter 90, grants, ARPA, etc.)[;] [b] Chapter 90 project requests, approvals, reimbursement submittals, and closeouts[;] [c] Any grant applications/awards or denials tied to paving and roadway surface treatments[;] [6] Asset Condition and Performance [a] Pavement inventory and condition datasets (e.g., PCI/RSI), including methodology data dictionaries[;] [b] Annual/quarterly summaries of lane-miles treated, average PCI, and budget vs. actual delivery[;] [c] Any internal dashboards, spreadsheets, or reports used to track paving performance and unit costs[;] [7] GIS [a] Street centerline or project segment GIS with attributes for year, treatment type, quantities, and costs, of maintained[;] [8] Vendor Performance [a] Any post-project evaluations or scoreboards for contractors on paving/surface treatment work during the period. The Town responded on October 20, 2025, providing a fee estimate. Unsatisfied with the response, Mr. Richards petitioned this office and this appeal, SPR25/3168, was opened as a result. Fee Estimates – Municipalities If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Ginger Buteau SPR25/3168 Page 3 November 12, 2025 ($.05) per page may 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 of 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 the 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 October 20th Fee Estimate In an October 20, 2025 fee estimate, the Town provided a fee estimate of $250.00 and stated the following: Total estimated hours: 10 At $25 per hour for the estimated administrative costs to comply with the request for these documents: $250 In an October 21, 2025 email to the Town, Mr. Richards argued, “[a]s of the close of business on October 21, 2025 the Town of Auburn has not complied with the mandatory response obligations under M.G.L. c. 66, §10(b)…The statutory 10-business-day response window has now expired…” On October 23, 2025, counsel for the Town responded: The Town has acknowledged you requests and provided you the estimate to respond to such requests, which is what it is obligated to do prior to the expiration of the ten business day deadline… Departmental staff have continued to locate and review responsive records… Your request that the Town provide immediate, no-cost production of all responsive records in the formats originally requested; or a formal written denial identifying each statutory exemption and all segregable portions… is denied… [T]he Town will continue to work to identify the records you are requesting, and further expound on the cost that will be charged to produce such documents… In addition, the Town provided a further breakdown of its fee estimate, listing the total hours needed to respond to each part of the request, as well as employee names and a

Ginger Buteau SPR25/3168 Page 4 November 12, 2025 corresponding monetary value for each part of the request. Current Appeal In his appeal petition, Mr. Richards requested a fee waiver, argued that the Town’s fee estimate is deficient, and contested that the Town failed “to issue a complaint §10(b) response by October 21, 2025.” 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 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). G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under [G. L. c. 66, § 10(b)].” Where Mr. Richards submitted his request on October 6, 2025 and the Town provided its initial response and good faith fee estimate on October 20, 2025, I find the Town complied with G. L. c. 66, § 10(e) by providing a timely response to Mr. Richards’ request. Accordingly, I find this portion of Mr. Richards’ appeal is resolved. Where the Town provided a response within 10 business days, however, it is necessary to review the reasonableness of the Town’s fee estimate. Reasonableness of the fee estimate Although the Town states that it would take 10 hours to produce the responsive records, it is unclear why the Town requires this much time. The Town must advise how much time is needed to search and how much time is needed to segregate and/or redact the records, and must clarify how many pages of responsive records it possesses, as well as how many minutes per

Ginger Buteau SPR25/3168 Page 5 November 12, 2025 page the Town requires to segregate or redact the records. The Town’s fee estimate also lacks confirmation that the rate of $25 per hour is that of the lowest paid employee who is capable of performing the tasks. Accordingly, the Town must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, if redactions are required, the Town must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. Pursuant to the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). Consequently, the Town must also clarify whether its fee estimate includes time for segregation or redaction not required by law. Additionally, the Town’s fee estimate lacks confirmation of the Town’s population and whether the first two hours of employee time to search for, compile, segregate, redact or reproduce the records has been factored into the fee estimate. Please be advised, municipalities may not assess a fee for the first 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. See G. L. c. 66, § 10(d)(iii). For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee estimate of $250.00 is consistent with G. L. c. 66, § 10(d). This office encourages Mr. Richards and the Town to communicate to facilitate providing records more efficiently and affordably. Mr. Richards may wish to narrow his request. The Town must use its superior knowledge of the records to suggest any potential reasonable modifications to the request. 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. Richards with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) 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. Richards may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Ginger Buteau SPR25/3168 Page 6 November 12, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Eric Richards Robert J. Hennigan, Jr., Esq.