Tracye Whitfield v. Springfield, City of - Office of the City Clerk (SPR 20230027)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 11, 2023 SPR23/0027 Justin P. Morin Public Records Coordinator/Paralegal City of Springfield – Law Department 36 Court Street, Room 210 Springfield, MA 01103 Dear Mr. Morin: I have 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(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 December 27, 2022, Tracye Whitfield requested various records regarding “small businesses, new businesses, and Build Back Springfield ARPA grant application requests.” 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. 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

Justin P. Morin SPR23/0027 Page 2 January 11, 2023 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). Current Petition In its January 4, 2023 petition, the City requests to charge fees in excess of $25 per hour, and provides the following information in support of its petition: The records will take an estimated 6.75 hours to produce: 5 hours at $60.00 per hour for the Director of Disaster Recovery and Compliance to sort and pull data from spreadsheets to compile in accordance with the records being requested; 1 hour at $28.76 per hour for the Public Records Coordinator to review the records to determine whether redactions are needed and to apply them; and .75 hours at $41.59 for the 2nd Associate City Solicitor to review the redactions and approve the release of the documents The City also indicates that it will not charge for the first two hours at a rate of $60 per hour, and goes on to explain the following: In order to respond to this request, the Director of Disaster Recovery and Compliance must sort and extract data from spreadsheets to compile in

Justin P. Morin SPR23/0027 Page 3 January 11, 2023 accordance with the request. The Public Records Coordinator in the Law Department will have to review the records for exempt material and redact them if needed. Finally, the 2nd City Solicitor in the Law Department must review and approve records before release. Although the City has described the scope of the work required to complete the request, based on the City’s petition, I find the City has not met its burden to explain how the request could not prudently be completed without assessing a fee in excess of $25 per hour. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, I find the City has not met its burden to assess fees in excess of $25 per hour. This office encourages Ms. Whitfield 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). Sincerely, Manza Arthur Supervisor of Records cc: Tracye Whitfield