Patrick Higgins v. Fall River, City of - Office of the City Clerk (SPR 20211612)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 14, 2021 SPR21/1612 Alison Bouchard City Clerk – Records Access Officer City of Fall River One Government Center; Room 227 Fall River, MA 02722 Dear Ms. Bouchard: I have received the petition of Patrick Higgins appealing the response of the City of Fall River (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Higgins requested: “[a]ll emails sent from or received from [an identified person’s email address] between April 23, 2021 and May 22, 2021.” In a June 3, 2021 response, the City denied Mr. Higgins’ request in its entirety. In its June 3rd response, the City’s Assistant Corporation Counsel, Seth Thomas Aitken, asserts, “[t]he records you are seeking exist outside of the executive branch and are not included in M.G.L. Ch. 4, § 7(twenty-sixth). Accordingly, said records are not subject to a request under M.G.L. Ch. 66, § 10.” Prior appeal Unsatisfied with the City’s response, Mr. Higgins petitioned the Supervisor of Records (Supervisor), and appeal, SPR21/1410, was opened. Mr. Higgins clarifies in his petition, “…this is an appeal of the denial of the request for private emails used by the [C]ity [C]ouncilor for [C]ity-related business.” In my June 17, 2021 determination, I found that the City did not meet its burden in responding to Mr. Higgins’ public records request. See SPR21/1410 Determination of the Supervisor of Records (Supervisor) (June 17, 2021). After receipt of my June 17th determination, the City provided Mr. Higgins with a June 28, 2021 response stating, “[w]hile the deadline for response is this week, this office is still in the process of getting said messages from [an identified person’s email address] and reviewing them for any specific exemptions that should be claimed. To that end, [Attorney Seth Aitken] [is] asking for your agreement to extend the deadline for compliance. By tomorrow end of day, I will be able to estimate the cost for producing these records and with your agreement I believe my office could produce the records on or before July 9, 2021. Will you agree to this extension?” 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

Alison Bouchard, City Clerk/RAO SPR21/1612 Page 2 July 14, 2021 On June 28th, Mr. Higgins, responding to an extension of time to produce the records, stated, “[n]o.” Fees – 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 ($.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 how 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). Current appeal On June 29th, Attorney Aitken emailed Mr. Higgins again with the costs to provide him with the records. The City estimates that the cost of complying with Mr. Higgins request will be no less than $106.00 and as much as $336.00, plus the cost of whatever media is used to deliver the documents. Attorney Aitken indicates, “[t]he emails in question include a significant amount of information relating to specifically named individuals.” The City intends to use its Information Technology Department (IT) to assist with searching for and compiling the emails, so that the emails can be segregated and redacted under Exemption (c).” 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 estimate is based on 4-5 hours of the City’s time, minus 2 hours free of charge, for a total of 2-3 hours of time. Attorney Aitken’s estimate is based on an hourly rate of $25.00 per hour, due to IT employees who have hourly rates from $53.00 per hour and $112.00 per hour. He

Alison Bouchard, City Clerk/RAO SPR21/1612 Page 3 July 14, 2021 states, “…I will be seeking a waiver to exceed the statutory $25.00 per hour rate.” -Se-e G. L. c. 66, § 10(d)(iii). Municipalities may charge more than $25 per how if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). It is unclear whether the City has filed a petition with the Supervisor to assess an hourly rate beyond the maximum allowed by the Public Records Law. The City also intends to charge for the cost of whatever electronic media is used to deliver the documents at $12-$15, and if printed, the City estimates a cost of $5.00 for printing. Unsatisfied with the June 29th response, Mr. Higgins petitioned the Supervisor a second time, and the current appeal, SPR21/1612, was opened. In an email to a Senior Attorney in the Public Records Division, Mr. Higgins clarified his petition for the current appeal. Mr. Higgins asserts that the City cannot assess fees because it did not respond to his request within ten (10) business days, and that the City is seeking to produce the requested beyond ten (10) business days. Based on Mr. Higgins’ petition, the City may not be able to assess fees to provide Mr. Higgins with the responsive records. I find it is unclear whether the City provided a response to the May 22nd request in compliance with the Public Records Law. 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).” The City must clarify whether it provided a response within ten (10) days of the request and in compliance with G. L. c. 66, § 10(e). Mr. Higgins also objects to the City extending the deadline beyond ten (10) days to produce the records. In its June 28th email, the City stated, “…with your agreement I believe my office could produce the records on or before July 9, 2021. Mr. Higgins informed the City that he does not agree to an extension of time. G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi).

Alison Bouchard, City Clerk/RAO SPR21/1612 Page 4 July 14, 2021 Whereas Mr. Higgins’ request was submitted on May 22, 2021, and the City did not provide a fee estimate until June 29th, I find the City has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, since it is unclear at this time whether the City is allowed to assess fees, receive payment of the fees and then provide the records, I decline to opine on the issue of an extension of time to provide Mr. Higgins with the records within a maximum of twenty-five days at this time. Conclusion Accordingly, the City is ordered to provide Mr. Higgins with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Patrick Higgins