Michael D. O'Farrell v. Fitchburg, City of (SPR 20221584)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 25, 2022 SPR22/1584 Mark Barbadoro Building Commissioner Building Department City of Fitchburg 718 Main Street, Suite 201B Fitchburg, MA 01420 Dear Mr. Barbadoro: I have received the petition of Michael and Mary Ann O’Farrell appealing the response of the City of Fitchburg (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 15, 2022, Mr. and Mrs. O’Farrell requested numerous records including records related to storage sheds, violations of zoning ordinances, and records “used to match the advertised requirements for the position of Local Building Inspector with the relevant experience claimed in writing by [a named individual]…” The City responded on June 27, 2022. Unsatisfied with the response, Mr. and Mrs. O’Farrell petitioned this office and this appeal, SPR22/1584, was opened as a result. Fee estimate – municipalities 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). 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

Mark Barbadoro SPR22/1584 Page 2 July 25, 2022 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 City’s fee estimate In its June 27, 2022 response, the City gave a fee estimate of more than $812,500. The City stated that, “there are more than 400 employees of the City of Fitchburg and more than 13,000 properties that would need to be investigated by opening every property file and reviewing each file individually to see if the file contained the information you seek.” The City argued that, “there is no way to accomplish this in 10 business days or even 25 days. This request would unduly burden[] the other responsibilities of the municipality. The city would have to employ a contractor to do this work. Once the contractor is employed the city would need months if not years to complete it.” The City said that, “there are dozens of departments which have files with information on those 13,000+ properties. These files would need to be carefully examined to see if they contained the information you seek.” The City asserted: I am speculating that on average, each property file would need about ½ hour of review time for an employee to go through the file and pull out information about sheds. This review could take more than 6,500 hours and cost $162,500 for the building department files alone. I would expect that a review of the files of other departments will have a similar cost associated or more in some cases. Regarding the 400 plus employees, I would estimate a full day of reviewing each of their files and I would estimate that expense to be over $80,000. Redactions will be extra. I estimate $32,000 per department. A review of the Building department, Health department, Fire department, clerks [sic] office, and assessors would cost more than $812,500. The City added: Here is your good faith estimate for the building department property files and personal records of the building department staff. Review and select the required files: $162,500 Redact the files[:] $32,000 Review the building department employee files[:] $2000 Redact [a named individual’s] employee file [:] $47.50 Total cost for the building department[:] $196,547.50 Although the City has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take “months if not years” and more than 6,500 hours for the building department files alone, it is unclear how the City requires this much time to produce responsive records. It is also not clear what tasks are involved to prepare responsive records for production. As such, the City must provide further details regarding its fee estimate.

Mark Barbadoro SPR22/1584 Page 3 July 25, 2022 See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The City must confirm that the rate of $25.00 is that of the lowest paid employee capable of performing such work. Further, although the City explained that it intends to redact documents, it is unclear whether the City is charging for exemptions that are not required by law. See G. L. c. 66, § l0(d)(iii) (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)). For the reasons discussed above, I find the City must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). I encourage Mr. and Mrs. O’Farrell and the City to communicate further in order to facilitate producing records efficiently and affordably. Mr. and Mrs. O’Farrell may wish to include applicable time periods, additional factors to enable the search to be processed such as narrowing the key words to three or less words. G. L. c. 66, § l0(a)(i). The City must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality 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 agency or municipality to produce records sought more efficiently and affordably). To the extent possible, the City must provide responsive records on a rolling basis. Conclusion Accordingly, the City is ordered to provide Mr. and Mrs. O’Farrell with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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, Manza Arthur Supervisor of Records cc: Michael and Mary Ann O’Farrell