Brian DeLacey v. Malden, City of - Office of the Mayor (SPR 20202036)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 4, 2020 SPR20/2036 Gary Christenson Office of the Mayor City of Malden 200 Pleasant Street, Room 627 Malden, MA 02148 Dear Mr. Christenson: I have received the petition of Brian DeLacey appealing the response of the City of Malden (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on October 1, 2020, Mr. DeLacey requested records “. . . sent or received by staff in Malden’s Department of Recreation meeting the following Detail criteria: • Any records related to FIELD PERMIT fees, requests, applications, approvals, scheduling or issuance; • Including any email communications related to scheduling, including convllcts, [sic] or other matters; • During the timeframe beginning 1/1/2020 to the day prior to your response is issued; • By any individual, group, for-profit, non-profit, Malden Public School or Mystic Valley Regional School entity; • At any field in the City of Malden, including Pine Banks; • Covering all arrangements (e.g. lighting) which may incur extra fees, discounts or custom billing (such as city sponsored programs or custom schedules); • Describing actual field use, schedule use, cancellation, or other measure of utilization; • Spanning a single season, or any time frame; • Along with any records documenting payments received against permits issued and • The fee-schedule in the place corresponding to the timeframe of these requested records[.]” The City responded on October 21, 2020, providing a fee estimate. Objecting to the fees, Mr. DeLacey petitioned this office and this appeal, SPR20/2036, was opened as a result. 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

Gary Christenson SPR20/2036 Page 2 November 4, 2020 Fee estimate – 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, 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 City’s October 21st fee estimate On October 21, 2020, the City provided the following fee estimate: Estimated Hours – 12.00 Estimated Hourly Rate – $25.00 Estimated Personnel Cost – $300.00 Total Estimated Personnel Cost – $300.00 G. L. c. 66, § 10(e) In his appeal petition, Mr. DeLacey states the following: “It is my understanding that the Commonwealth defines a business day as M-F excluding state holidays. . . . Based on my calculation and observation, the city had a ‘tenth day’ obligation to respond to my request by 10/16/20. I did not receive an acceptable response from the city according to the ‘tenth business day rule’.” 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 subsection (b).” Where Mr. DeLacey submitted a public records request on October 1st and the City provided a response on October 21st, I find it is unclear whether the City complied with G. L. c. 66, § 10(e). Specifically, the City must demonstrate whether it provided a response to Mr. DeLacey’s request under G. L. c. 66, § 10(b) within 10 business days of receipt

Gary Christenson SPR20/2036 Page 3 November 4, 2020 of the request. Reasonableness of fee estimate In the event that the City can demonstrate that it complied with G. L. c. 66, § 10(e), it is necessary to analyze the reasonableness of the fee estimate. In the City’s fee estimate, it indicates that it is assessing a fee for 12 hours to produce responsive records. However, it is unclear why the City requires 12 hours to produce responsive records. The City must provide additional information explaining why the estimated amount of time is required and what tasks are involved in these 12 hours. Also, it is unclear whether the indicated 12 hours include time to search for, compile, segregate, redact, or reproduce records as described under G. L. c. 66, § 10(d)(ii). Consequently, I find the City must clarify this estimate. If the City is assessing a fee for segregating or redaction, please note that under 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). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. See 950 C.M.R. 32.06(4)(g). As such, I find the City 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. Please note 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). Further, although the City states that it is assessing an hourly rate of $25.00, the estimate lacks confirmation that the City intends to use the lowest paid employee who is capable of performing the tasks required to produce responsive records. Conclusion Accordingly, the City is ordered to provide Mr. DeLacey 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 this response to this office at pre@sec.state.ma.us.

Gary Christenson SPR20/2036 Page 4 November 4, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian DeLacey