Jeremy Starobin v. Brockton, City of - Law Department (SPR 20222830)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 16, 2022 SPR22/2830 Anthony J. Donegan, Jr., Esq. Assistant City Solicitor City of Brockton 45 School Street 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, 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, the City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On November 22, 2022, Jeremy Starobin requested records “for all of the properties in the City of Brockton that are Tax Delinquent, Pre-Foreclosures, and all information regarding properties in Brockton that have received more than 3 City Code Violation (within the last 5 years).” Petitions 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. SPR22/2830 Page 2 December 16, 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) shall 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). Request for Additional Time to Produce Responsive Records In its December 8, 2022 petition, the City requests an extension of 30 business days and provides the following information in support of its request: [The City] estimate[s] that three separate City departments produce documents that may be responsive to [the] request (Board of Health (BOH); Building Department; and the Department of Public Works (DPW). Each department employs at least five separate persons who conduct property or business inspections, and in many instances prepare and submit written reports, letters, or “notices” to property and business owners. Each inspector produces and sends a substantial number of reports, letters and notices on a yearly basis. The majority are resolved, and are not “current” or “active”. The City estimates each of the 15 employees will produce on average 20 such responsive, current and active notices that could be characterized as “code violations” or in the nature of “code violations” each year for five years, from November 22, 2017 – November 22, 2022. The estimated total number of documents exceeds 1,500. The City also states that “City employees will be required to take substantial time from their assigned duties to collect and review data at a substantial cost to the City, and for substantial time away from the employees required work.” Specifically, the City notes that “this request would greatly burden the Brockton Health, Building and Public Works and Law Departments, and hamper City employees’ efforts obligations to attend their other job responsibilities.” I find that in light of the need to search for and collect the records, and the capacity of the City to produce the request without the extension, the City has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The City is granted an extension of 30 business days.

Anthony J. Donegan, Jr., Esq. SPR22/2830 Page 3 December 16, 2022 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). In this case it was unclear whether the request was 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 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).

Anthony J. Donegan, Jr., Esq. SPR22/2830 Page 4 December 16, 2022 Current Petition In its December 8th petition, the City requests to assess fees for time spent segregating and redacting responsive records. In support of its request, the City argues the following: [T]his 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. In a letter to this office and Mr. Starobin on December 16, 2022, the City further states that the responsive records include information which may be redacted under Exemptions (c), (d), (e), and (n) of the Public Records Law. See G. L. c. 4, § 7(26)(c), (d), (e), (n). The City explains that the records include “inter-agency or intra-agency memoranda or letters relating to policy positions being developed,” as well as “notebooks and other materials prepared by an employee,” and further explains that “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 G. L. c. 4, §7(26)(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. Conclusion Accordingly, I find the City has established good cause for a time extension of 30 business days as described above. Additionally, to the extent the responsive records contain the exempt information described above, the City may assess a fee for segregation and redaction. This office encourages Mr. Starobin and the City to continue to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification to 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). Any subsequent fee estimate from the City must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Mr. Starobin 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(c), 10(d)(iv)(4), 10A(c).

Anthony J. Donegan, Jr., Esq. SPR22/2830 Page 5 December 16, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Jeremy Starobin