Eric Richards v. Auburn, Town of - Town Clerk (SPR 20253170)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 5, 2025 SPR25/3170 Ginger L. 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, “for FY2021-present,” Mr. Richards requested the following records: [A] Projects and Quantities (per project/segment) - Project list with: project ID; street/limits; side(s) (N/S/E/W); material (concrete/asphalt); width; length; built area; number of ADA ramps; curb length/type; crosswalks; detectable warning panels; drainage items; start/finish dates; contractor. - Bid tabs / final pay item schedules showing unit prices and final paid quantities (LF, SF, SY, EA, TON as applicable). - Plans/quantity takeoff or engineer’s estimate if itemized quantities are not in the ledger. [C] Contracts and Procurement - Executed contracts/POs, amendments/change orders, NTP, substantial/final completion, closeout. - Any on-call sidewalk or concrete contracts and task orders issued. [D] Cost and Performance Reports 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 L. Buteau SPR25/3170 Page 2 November 5, 2025 - Any internal reports or dashboards showing cost per square foot/square yard/linear foot and cost per ramp; annual feet/area completed; budget vs. actual delivery. [E] GIS / Asset Inventory (if maintained) - Sidewalk inventory GIS with attributes for year built/rehab, width, material, condition, and ADA ramp locations; or project-segment GIS with the same attributes. It is my understanding that the Town assigned this request reference number #2025-782. The Town responded on October 20, 2025, providing a fee estimate. Counsel for the Town provided a subsequent response on October 23, 2025. Unsatisfied with the Town’s responses, Mr. Richards petitioned this office and this appeal, SPR25/3170, 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 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). The Town’s October 20th and October 23rd Responses In its October 20, 2025 response, the Town assessed a fee of $462.50 to provide the responsive records. Additionally, the Town provided a link to “the town’s bid documents… posted on the town’s website.” In support of its fee estimate, the Town stated:

Ginger L. Buteau SPR25/3170 Page 3 November 5, 2025 Per 950 CMR 32.07 Copies of Records; Fees, the following breakdown provides an estimate of the cost to respond to your request. Total estimated hours: 18.5 At $25 per hour for the estimated administrative costs to comply with the request for these documents: $462.50 Please note that the actual cost of producing these records may vary once staff begin preparing the records. The final cost will be determined based on actual administrative costs incurred. In an email to the Town on October 21, 2025, Mr. Richards argued that the Town “failed to produce records, issue a proper denial, or provide a compliant estimate within the 10-business- day period…” On October 23, 2025, counsel for the Town responded: The Town has acknowledged your 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 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 compliant §10(b) response by October 21, 2025.” In a subsequent email to this office on October 31, 2025, counsel for the Town stated: Mr. Richards’ document requests are complex and voluminous… While the Town is certainly not opposed to waiving the fee for simple public records requests, based on the amount of work that would be required to provide such requested documents, the number of different people who will need to spend time compiling

Ginger L. Buteau SPR25/3170 Page 4 November 5, 2025 such records, and based on Mr. Richards’ repeated clarifications and communications with the Town throughout the process, the Town determined that it was not able to waive the statutory fee. 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 18.5 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 under the law. 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, and must clarify how many pages of responsive records it possesses, as well as how many minutes per 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 the

Ginger L. Buteau SPR25/3170 Page 5 November 5, 2025 lowest paid employee who is capable of performing the task(s). 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). 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 $462.50 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. 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). Sincerely, Manza Arthur Supervisor of Records cc: Eric Richards Robert J. Hennigan, Jr., Esq.