Jean May Dagatan v. Brockton, City of - Law Department (SPR 20222527)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 15, 2022 SPR22/2527 Anthony J. Donegan, Jr., Esq. Assistant City Solicitor City of Brockton Law Department 45 School Street, 1st Floor Brockton, MA 02301 Dear Attorney Donegan: I have received your petition on behalf of the City of Brockton (City) seeking an extension of time to produce records and requesting permission to charge for time spent segregating and redacting responsive records under G. L. 66, § 10(d)(iv). G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On October 21, 2022, Jean May Dagatan, of Moss Home Solutions, requested “the information of all property owners in the City of Brockton who have an outstanding code violation or board of health violation as of today, October 21, 2022.” 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

Anthony J. Donegan, Jr., Esq. SPR22/2527 Page 2 November 15, 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). Current Petition In its petition dated November 4, 2022, the City notes that it has reached out to the requestor asking for clarification regarding the request. The City states: It is unclear as to whether the Requestor is seeking all code violation records in the City’s possession, or with a one year limit. In either event, the request is overly broad, and unclear as to what code violations the Requester wants; Building, DPW, Health, Fire Code or all of those Departments. Finally, the request as written also would encompass the City’s Vacant and Abandoned Building Registry records, which for security reasons, the City would exempt under [Exemption (n)]. The City’s Request for fees assumes that its employees will have to go back in time for at least one year. The estimate of time contemplated does not consider the other code violations, or City departments and employees that would be affected. The City believes the actual time spent would be much greater. Certainly if read another way the lookback would be for an indeterminate time and an indeterminate number of code violations involving an unspecified number of City departments. Whether the requester fails to modify the scope of its request or not, City employees will be required to take substantial time from their assigned duties to collect and review files and data at a substantial cost to the City, and for substantial time away from the employees’ required work. As noted at least 15 employees will be required to modify their work schedules, including inspections, appointments and court hearings. As such, the City submits this petition for an extension of thirty (30) days from November 4, 2022 to comply. I find that in light of the capacity to produce the request without the extension, the City

Anthony J. Donegan, Jr., Esq. SPR22/2527 Page 3 November 15, 2022 has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the City an extension of 30 business days to furnish copies of records responsive to Ms. Dagatan’s request. See G. L. c. 66, § 10(c). Petition to Assess Fees – Municipalities 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. 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 2 (two) 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

Anthony J. Donegan, Jr., Esq. SPR22/2527 Page 4 November 15, 2022 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 November 4, 2022 petition, the City states the following: Further, this fee is necessary such that the request cannot be prudently completed without making the applicable redactions as described. The City is unaware of a means to make the requested documents available for inspection without having them first reviewed and redacted by the appropriate City employee(s). As stated in its Revised Ordinances at Ch. 4, § 4-41, the City of Brockton has determined “that vacant and abandoned properties are a public health and safety risk, as well as the potential to become public nuisances and decrease the value of surrounding properties, provide a location for criminal activity, and create significant costs to the city by virtue of the need for constant monitoring and occasionally cleanup.” Therefore, before sending the documents to the Requestor, each of the inspectors’’ files will have to be cross referenced against a list of vacant and abandoned properties maintained by the City. Any properties listed on the City’s vacant and abandoned property registry are redacted, in accordance with [Exemption (n)] . . . In light of the City’s petition, 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). To the extent the responsive records contain the exempt information as described above, the City may assess a fee for the segregation and redaction of such exempt material. This office encourages Ms. Dagatan and the City to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a 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 municipality to produce records sought more efficiently and affordably). Conclusion I find the City has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the City an extension of 30 business days to furnish copies of

Anthony J. Donegan, Jr., Esq. SPR22/2527 Page 5 November 15, 2022 records responsive to Ms. Dagatan’s request. See G. L. c. 66, § 10(c). Additionally, 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). To the extent the responsive records contain the exempt information as described above, the City may assess a fee for the segregation and redaction of such exempt material. Please note, Ms. Dagatan 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, Manza Arthur Supervisor of Records cc: Jean May Dagatan