Scott Graves v. Gardner, City of - Law Department (SPR 20230351)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 28, 2023 SPR23/0351 John M. Flick, Esq. City Solicitor Flick Law Group, P.C. 144 Central Street Gardner, MA 01440 Dear Attorney Flick: On February 21, 2023, this office received your petition on behalf of the City of Gardner (City) seeking an extension of time to produce records and requesting permission to charge for time spent segregating or redacting responsive records, as well as 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, it is my understanding that the City furnished a copy of this petition to the requestor, Scott Graves. G. L. c. 66, § 10(d)(iv). On February 12, 2023, Mr. Graves requested numerous communications between various identified individuals regarding an identified lawsuit. 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

John M. Flick, Esq. SPR23/0351 Page 2 February 28, 2023 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 February 21st petition, the City states, “I am petitioning for an extension of time to April 1, 2023 to respond as I will be on vacation for one week starting March 10.” In light of the capacity of the City to produce the records without an extension, 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 24 business days, to furnish copies of records responsive to Mr. Graves’s request. See G. L. c. 66, § 10(c). 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 an agency’s petition to allow the agency 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 agency 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.

John M. Flick, Esq. SPR23/0351 Page 3 February 28, 2023 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 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). 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 February 21st petition, the City states: The records sought by this request are solely in the possession of the Law Department or involve matters in which the Law Department was directly engaged. Whereas the requested records are directly related to an administrative agency action, and litigation in which the City was engaged, any documents deemed responsive to determine if the documents are protected by the attorney client privilege and, thus exempt from production. The Law Department consists of two employees, the City Solicitor and the Assistant City Solicitor. The Law Department does not have any administrative staff. The requested records concern matters in which the City Solicitor was directly involved. The Assistant City Solicitor had no involvement in these matters. Therefore, only the City Solicitor has the knowledge to review the records for production.

John M. Flick, Esq. SPR23/0351 Page 4 February 28, 2023 The City’s Solicitor’s currently hourly rate (based on the established salary) is $44.69. I anticipate ten to twelve hours to segregate and analyze all records related to this request. 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, segregation or by assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). In light of the factors in G. L. c. 66, § 10(d)(iv), I find the City may assess a fee limited to $44.69 per hour for attorney review. Conclusion 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, segregation or by assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). In light of the factors in G. L. c. 66, § 10(d)(iv), I find the City may assess a fee limited to $44.69 per hour for attorney review. This office encourages Mr. Graves and the City to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii). Additionally, the City is granted an extension of 24 business days to furnish copies of records responsive to Mr. Graves’s request. See G. L. c. 66, § 10(c). 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), l0A(c). Sincerely, Manza Arthur Supervisor of Records cc: Scott Graves