Adam Gutbezahi v. Malden, City of - Office of the City Clerk (SPR 20221864)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 17, 2022 SPR22/1864 Greg Lucey City Clerk City of Malden 215 Pleasant Street 2nd Floor – Room 220 Malden, MA 02148 Dear Mr. Lucey: On August 11, 2022, this office received your petition on behalf of the City of Malden (City) seeking an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); 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. Id. In a letter dated August 2, 2022, Attorney Adam Gutbezahi, of Ruberto, Israel & Weiner, requested nine (9) categories of records concerning the City and the operation of a retail marijuana establishment. Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. 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

Greg Lucey SPR22/1864 Page 2 August 17, 2022 G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Extension of Time to Produce Responsive Records In its August 11th petition, the City states, “[i]n relation to the requests, the City has determined that responsive documents include 12 cannabis license applications and approximately 5,000 e-mails…License applications range from approximately 200 pages to more than 500 pages and contain a variety of personal information that must be redacted.” The City posits that “[t]he only employee available to perform this work is a part-time clerk to the Cannabis Licensing and Enforcement Commission, who generally devotes approximately 15 hours a month to all administrative tasks required of the Commission.” The City states, “…to require that a response be provided within 10 days places an undue burden on the other responsibilities of the Commission’s only staff member and would adversely impact their ability to effectively engage in on-going review of license applications.” I find in light of the need to collect and segregate the request, as well as the capacity of the City to produce the request without an extension, the City has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). The City is granted an extension of 30 business days. 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).

Greg Lucey SPR22/1864 Page 3 August 17, 2022 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. 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 August 11th petition, the City “…requests that it be allowed to charge $25 per hour for the time that it may take to segregate and redact these records.” The City notes, “[e]xamples of personal information include items such as social security numbers, bank account numbers, personal tax returns, and CORI information. Each application

Greg Lucey SPR22/1864 Page 4 August 17, 2022 contains this information for all individuals with an interest in the proposed business, and is contained multiple times on various documents throughout the application. To develop an estimate for the cost of responding to these requests, two applications were reviewed and redacted. A 214 page application required 45 minutes to review and redact, while a 380 page application required 1 hour and 10 minutes to review and redact. Based on this sample set, the city estimates that the average time required to review and redact an application will be approximately 1 hour. Therefore, review and redaction of 12 applications is expected to take 12 hours.” The City states, “[o]f the 5,000 e-mails, some contain similar types of personal information, as applicants were requested to provide supplemental and/or missing information. Based on a sample set of 50 e-mails, we estimate that, on average, 10 seconds will be required to review an e-mail. Therefore, review and redaction of e-mails will require 13.8 hours. The hourly rate of the lowest paid employee capable of conducting this review exceeds $25.00/hour. In accordance with 950 CMR 37.02(2)(m)(1), Mr. Gutbezahi will not be charged for the first two (2) hours of those services. 23.8 hours multiplied by $25 per hour yields a fee estimate of $595.00.” 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 redaction or segregation. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the City is permitted to charge for time spent segregating and redacting the requested records. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the City may assess a charge for the segregation and redaction of such exempt material. With respect to time, I find the City has established good cause to permit an extension of 30 business day. G. L. c. 66, § 10(c)(i)-(ii). This office encourages the parties to communicate further to enable the City to provide records in an efficient and affordable manner. Please note, the requestor 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).

Greg Lucey SPR22/1864 Page 5 August 17, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Adam Gutbezahi, Esq.