Elizabeth Dray v. Arlington Housing Authority (SPR 20211483)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 17, 2021 SPR21/1483 Jack Nagle Arlington Housing Authority 4 Winslow Street Arlington, MA 02474 Dear Mr. Nagle: I have received your petition on behalf of the Arlington Housing Authority (Authority) requesting an extension of time to produce records, a waiver of statutory limits on fees that may be assessed in responding to a public records request and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); see also 950 C.M.R. 32.06(4). As required by law, the Authority provided a copy of the petition to the requestor. G. L. c. 66, § 10(c). In a request received by the Authority on June 4, 2021, Elizabeth Dray requested: “copies of all emails from all housing authority board members and Attny. John Greco between the dates of 3/31/21 to 4/19/21 that contain the key words Kelda, Fontenot, AFR, Arlington Fights Racism, Lynette, Martyn, Elizabeth, Dray, Sheri.” Petitions for an extension of time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; 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

Jack Nagle SPR21/1483 Page 2 June 17, 2021 (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requester within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current petition In the Authority’s petition dated June 14th, you indicate that the “AHA will not be able to respond within 10 business days of receipt of the request.” Further, you state that it is “anticipated that that [you] will respond within 75 days of the receipt of the request due to the difficulty and time required to identify, segregate and redact certain exempted information.” Petition to Assess Fees 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 (Supervisor) 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). 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; 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.

Jack Nagle SPR21/1483 Page 3 June 17, 2021 Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). In its June 14th petition, the Authority requests that it be allowed to charge “additional fees based on the … AHA Good Faith Fee Estimate.” The Authority estimates a total charge of $2,385.00 for this request. The estimate includes an hourly charge of $95.00 for attorney fees. Conclusion Accordingly, I find that in light of the lack of explanation in the Authority’s petition, the Authority has not met its burden to establish good cause to justify approval for assessing this proposed fee or an extension of time to respond to this request at this time. Sincerely, Rebecca S. Murray Supervisor of Records cc: Elizabeth Dray