Collin Dias v. Fall River, City of - Office of the Corporation Counsel (SPR 20212359)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 21, 2021 SPR21/2359 Attorney Seth Aitken City of Fall River Office of the Corporation Counsel One Government Center Fall River, MA 02722 Dear Attorney Aitken: I have received your petition on behalf of the City of Fall River Office of the Corporation Counsel (City) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the City furnished a copy of this petition to the requestor, Mr. Collin Dias. Id. In a letter dated September 8, 2021, Mr. Dias requested “City of Fall River contracts from January 2020 thru September 2021 by and between the City of Fall River and several [named] corporations” within the possession of the City. Petitions to assess fees 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 or to charge in excess of $25 an hour for the provision of public 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 the request is not for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the 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

Attorney Seth Aitken SPR21/2359 Page 2 September 21, 2021 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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) Current Petition In its September 14, 2021 petition, the City requests “a fee extension in excess of the statutory $25.00 / hr. charge permitted for the production of records responsive to a public records request.” The City states that “[a]s a result of [the] initial inquiry [the City has] identified multiple contracts consisting of more than 10,000 pages in total. The contracts in question will require review by a City attorney for any necessary redactions and assertions of privilege or exceptions.” The City estimates that “the review process will take no less than fifteen (15) hours of attorney time” and “two (2) hours of staff time.” Therefore, the City “request[s] authorization to bill an estimated fifteen (15) of those hours at $70.00 per hour.” Conclusion I find the City has not met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Therefore, I am unable to grant permission to charge in excess of $25 an hour. Please note, this does not preclude the City from charging for segregation and redaction that is required by law at $25.00 per hour.

Attorney Seth Aitken SPR21/2359 Page 3 September 21, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. Collin Dias