Allison Fondo v. Springfield, City of - Office of the City Clerk (SPR 20221894)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 22, 2022 SPR22/1894 Stephen G. Roche, Esq. Associate City Solicitor Springfield Law Department 36 Court Street, Room 210 Springfield, MA 01103 Dear Attorney Roche: On August 16, 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 the request. G. L. c. 66, § 10(d)(iv). As required by law, the City furnished a copy of this petition to the requestor, Attorney Alison M. Fondo of the Disability Law Center. G. L. c. 66, § 10(c). On August 8, 2022, Attorney Fondo requested “[c]opies of training and educational materials used by FPD, and any other guidelines or protocols distributed or made available regarding best practices and procedures for communicating with those with hearing loss during police activities.” 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

Stephen G. Roche, Esq. SPR22/1894 Page 2 August 22, 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) 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Current Petition In its August 16th petition, the City “…respectfully requests a waiver of the statutory limits to fees assessed to locate public records.” The City states, “[t]he proposed hourly fee represents the estimated cost to comply with the request.” The City contends that “[t]he fee is necessary because the City of Springfield is not

Stephen G. Roche, Esq. SPR22/1894 Page 3 August 22, 2022 able to respond to this request without the work of a highly skilled employee with the appropriate security access to locate, gather and copy the requested records.” In light of this, the City seeks to charge the SPD Academy Officer’s hourly rate of $36.00. The City’s “…Good Faith Estimate to perform this work and produce the records is $72.00.” In a follow up letter dated, August 19, 2022, Attorney Thomas P. Murphy, of the Disability Law Center, states, “Disability Law Center is the designated Protection and Advocacy system for Massachusetts, with a mandate under various federal laws to protect the rights of individuals with disabilities. Thus, our focus areas include engaging in both individual representation and training, information and referral, and systemic advocacy on matters pertaining to the civil and human rights of people with disabilities. This includes all members of the general public in Massachusetts who are deaf or hard of hearing. We are currently engaged in an effort to review any policies and/or training materials of police departments across the Commonwealth that pertain to effective communication access. These documents will assist us in identifying any gaps or areas of needed improvement, which will inform our ongoing advocacy and will thus benefit members of the general public.” Conclusion Given the public interest served by limiting the cost of public access to the requested records, 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. Sincerely, Manza Arthur Supervisor of Records cc: Alison M. Fondo, Esq. Thomas P. Murphy, Esq. Justin P. Morin