Patrick Higgins v. Fall River, City of - Office of the City Clerk (SPR 20220800)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 11, 2022 SPR22/0800 Gary Howayeck, Esq. Assistant Corporation Counsel City of Fall River One Government Center Fall River, MA 02722 Dear Attorney Howayeck: I have received the petition of the City of Fall River (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 this petition to the requestor. Id. On March 21, 2022, Mr. Higgins requested, “emails and texts sent or received on a city-issued device or any other correspondence from all sitting City Councilors, Mayor Paul Coogan and [a certain individual] from Dec. 1, 2021 to Jan. 31, 2022.” Petitions 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. 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 Howayeck, Esq. SPR22/0800 Page 2 April 11, 2022 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. 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). 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 current petition, the City states: To perform Mr. [Higgins’] request, or any public records request that requires an email search, the Information Technology Department must do the following: • Investigate and confirm login information • Reconfigure permissions on mailbox • Log into Mailbox and export mail to .pst file over 25 Gb • Sort and re-export for timeframe selected (all email) • Perform another export to external media • Physically review all emails

Gary Howayeck, Esq. SPR22/0800 Page 3 April 11, 2022 • Copy and paste to another email • Review findings with Corporation Counsel to determine whether exemptions apply The City’s Information Technology currently does not have personnel qualified to perform this task. It would require hiring an outside IT Consultant, MTSI at an hourly rate of $140.00/hour … As such, the City of Fall River is seeking a waiver of statutory limits to fees described in 950 CMR 32.06(4)(g) and hereby petitions for permission to charge a fee of $140.00 per hour (in excess of the maximum hourly rate of $25.00 per hour) for the above-referenced public records request which requires extensive email searches. The City has not demonstrated why it must charge $140.00 per hour for specialized I.T. review. Please be advised that a custodian cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § l0(a); see G. L. c. 66, § l2; see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Conclusion Consequently, I find that the City has not met its burden to assess fees in excess of $25.00 per hour. Further, this office encourages the City and Mr. Higgins to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii)(a municipality or agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality or agency to produce records sought more efficiently and affordably). 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. 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. Higgins within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4).

Gary Howayeck, Esq. SPR22/0800 Page 4 April 11, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Gary Howayeck, Esq.