Jason Ray v. Springfield, City of - Office of the City Clerk (SPR 20220772)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 7, 2022 SPR22/0772 Marvenia Frazier-Shubrick Public Records Coordinator City of Springfield 36 Court Street, Room 123 Springfield, MA 01103 Dear Ms. Shubrick: On March 23, 2022, this office received your petition on behalf of the City of Springfield (City) seeking a waiver of statutory limits on fees that may be assessed in responding to a public records request. G. L. c. 66, § 10 (d)(iv). As required by law, the City furnished a copy of its petition to the requestor, Jason Ray. G. L. c. 66, § 10(c). On March 23, 2022, Jason Ray requested, “[a]ll official government emails between the dates of Monday, March 7, 2022 - Wednesday, March 9, 2022 that includes the list of names mentioned from members of the Mayor’s Office, Law Department, Procurement Department and the City of Springfield Library.” 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

Marvenia Frazier-Shubrick SPR22/0772 Page 2 April 7, 2022 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 petition, dated April 1, 2022, the City seeks “…a waiver of the statutory limits to fees assessed to segregate and/or redact public records with regard to the above-referenced public records request.” The City states, “[p]ersonnel in the City’s IT Department and Law Department have advised this office that they will need approximately 8.5 hours, to be completed in approximately three (3) weeks, to search for, segregate, review, and redact any records that may be responsive to the requestor’s modified request involving emails between certain staff in four (4) City Departments. The City’s IT Department has determined that there are approximately 3800 emails which include the requestor’s nine (9) search terms, to be reviewed, which includes 1143 emails using the three (3) new search terms [Mr. Ray] requested on March 23, 2022. The staff person in the IT Dept., Mr. Xu, is the only person in the office who can perform this type of search.” With respect to fees, the City notes, “[t]he City of Springfield’s records custodian’s good faith cost estimate to produce the records is $270.14. This total is based upon the hourly rate of the lowest paid employees capable of completing the request, which is estimated at 2.5 hours at

Marvenia Frazier-Shubrick SPR22/0772 Page 3 April 7, 2022 $50.00 per hour [$125.00] for Mr. /Xu in the IT Department to search the email records pursuant to the requestor’s modified search terms, plus 6 hours at $24.19 per hour [$145.14] for a paralegal in the City Law Department to review the email records found to determine if they are responsive, and to redact them as needed.” In light of the above, I find the City has 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). Conclusion Accordingly, in light of the factors in G. L. c. 66, § 10(d)(iv), I find the City may assess a fee limited to $50.00 per hour in responding to this request. When preparing a fee estimate for the provision of the requested records, the City is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary and how the redactions are required by law. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The City must provide a response to Mr. Ray within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Ray may appeal the City’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Mr. Ray 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(d)(iv)(4), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Jason Ray Steve Roche, Esq.