Wecker, Ross v. Kingston, Town of - Town Administrator (SPR 20260227)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 29, 2026 SPR26/0227 Matthew D. Provencher, Esq. Town Counsel Town of Kingston 26 Evergreen Street Kingston, MA 02364 Dear Attorney Provencher: On January 22, 2026, this office received your petition on behalf of the Town of Kingston (Town) seeking a waiver of statutory limits on fees that may be assessed in responding to a request for public 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, I understand that the Town furnished a copy of this petition to the requestor, Ross C. Wecker, Esq. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On January 2, 2026, regarding an identified project, Attorney Wecker requested: [1] All documents and correspondence relating or referring to the procurement and/or bid for the Project. [2] All documents and correspondence relating or referring to any filed sub-bids for plumbing work on the Project. [3] All documents and correspondence relating or referring to the rejection of any filed sub bids in connection with the Project. [4] All documents and correspondence relating to the consideration, approval, and/or award of the plumbing work on the Project to Fraser. [5] All documents and correspondence exchanged between Methuen and Kingston regarding any schedule for the performance of the work on the Project. [6] All documents and correspondence relating or referring to any changes to any schedule for the performance of the work on the Project exchanged between Methuen and Kingston. 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

Matthew D. Provencher, Esq. SPR26/0227 Page 2 January 29, 2026 [7] All documents and correspondence relating or referring to any change orders, change directives, or claims exchanged between Methuen and Kingston on the Project. [8] All documents and correspondence relating or referring to any Demand for Direct Payment made by Fraser to Kingston in connection with the Project. It is my understanding that the Town received the request on January 7, 2026 via certified mail. 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. 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

Matthew D. Provencher, Esq. SPR26/0227 Page 3 January 29, 2026 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). Fee 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 Town forwarded the attached initial response, which indicates that it anticipated spending between 40 to 160 hours responding to the request… I write on behalf of the RAO to petition the Supervisor for the ability to charge in excess of $25 per hour, as some of the records involved in responding to this request are outside the physical custody of the Town and must be performed by employees of a retained outside contractor on the Town’s behalf, under a billing arrangement that exceeds the $25 per hour the Town is allowed to charge. The Town has continued to investigate and can supplement its initial response with the following details. The sole Town employee directly capable of assembling public records and responding to this request is [an identified individual], the administrative assistant to the Sewer/Wastewater Department. It is estimated that it will take at least 80 hours of [an identified individual’s] employee time to locate and provide responsive documents in the Town’s possession. In addition, [an identified individual] expects that responsive documentation may exist within other Town departments (to wit, Building, Plumbing, Electrical, Zoning, and other Town departments), and that the requests to these departments and associated review of their records for responsive items will take at least 20 additional hours of employee time. [An identified individual] is compensated at a rate of over $25 per hour, and so the Town bases its estimate on the $25 per hour allowed by statute and regulation. Additionally, though, the Town has learned that potential responsive documents, though within the control of the Town, are physically located with a retained engineering firm, CDM Smith, and will require separate time and resources, and which are not capable of being conducted by Town employees. CDM Smith is retained at an hourly rate for services at $65 per hour, and it is expected that a review of their records to search for responsive items would take 60 hours at the

Matthew D. Provencher, Esq. SPR26/0227 Page 4 January 29, 2026 $65 per hour rate. The Town therefore anticipates that responding to the request will incur expenses for the Town above and beyond its own employee time, and require it to spend public funds securing responsive records. The Town therefore requests, under 950 CMR 32.06(4)(g) and (h) that the Supervisor allow the charging of time spent identifying and segregating responsive record, and to charge fees in excess of the maximum $25 per hour only for the 60 hours of CDM Smith’s time necessary to comply with the request. The Town asks that the Supervisor allow it to charge the full $65 per hour associated with CDM Smith’s work in this matter… Specifically, the Town expects to expend 100 hours of employee time at $25 per hour, and 60 hours of contractor time at $65 per hour in order to respond to this request. The total estimate in this matter is therefore $2500 in direct employee time, and $3900 in time expected to be expended by the Town’s contractor CDM Smith. There are no Town employees capable of reviewing or inspecting the materials in CDM Smith’s physical possession, even though such materials are within the Town’s control. Based on its petition, I find the Town has not met its burden to explain how the request could not prudently be completed without assessing fees in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Please be advised that the Town 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, § 10(a); see G. L. c. 66, § l2; see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Conclusion Accordingly, permission to charge fees in excess of $25.00 per hour cannot be granted at this time. This office encourages Attorney Wecker and the Town to continue to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification to 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 records sought more efficiently and affordably). Any subsequent fee estimate from the Town must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, the Town 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).

Matthew D. Provencher, Esq. SPR26/0227 Page 5 January 29, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Ross C. Wecker, Esq. Patricia Tucker