Tracye Whitfield v. Springfield, City of (SPR 20230614)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 14, 2023 SPR23/0614 Jeremy Saint Laurent, Esq. First Associate City Solicitor City of Springfield Law Department 36 Court Street, Room 210 Springfield, MA 01103 Dear Attorney Saint Laurent: I have received the petition of Tracye Whitfield appealing the response of the City of Springfield (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 28, 2023, Ms. Whitfield requested “copies of all ARPA applications, any supporting documents submitted with applications, the away letters of awardees from rounds 8, 9 awards in all categories of applications submitted.” She further specified that she “would like physical copies that [she] will pick up from City Hall [and does] not want the new individual/ senior application.” The City responded on March 15, 2023, providing a fee estimate. Objecting to the fees, Ms. Whitfield appealed, and this case was opened as a result. Fees - Municipalities If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 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

Jeremy Saint Laurent, Esq. SPR23/0614 Page 2 April 14, 2023 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 how if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). The City’s March 15th Fee Estimate In its March 15, 2023 fee estimate, the City provided an estimate of $1,618.50 and stated the following: This total is based on the cost to search, compile and redact the records [Ms. Whitfield has] requested. The charges are based upon the highest hourly rate allowed for a municipality to charge ($25 dollars an hour) which is estimated at 66.74 hours at $25 per hour. Please also note that copies of the responsive records will be billed at an additional $0.05 cents a page. Waiver of fees In her petition, Ms. Whitfield indicates that she is entitled to a waiver of fees because she believes that she must perform her due diligence “on review [of the] ARPA applications.” Ms. Whitfield asserts that she “would not go through the public records request process if they would allow me access to the records on the applications in question.” Ms. Whitfield is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor of Records has no authority to order that a record custodian do so. Upon review, the City’s fee estimate response is timely, because Ms. Whitfield sent the request to the City after regular business hours on February 28, 2023. Thus, the City received the request on March 1, 2023. Where the tenth business day to provide a response was March 16th, and the City provided a response on March 15th, I find the City may assess a fee for this records request. Please note, pursuant to 950 C.M.R. 32.02, a “Business Day” is “Monday through Friday. Business day does not include Saturdays, Sundays, legal holidays, or other weekdays where a custodian’s office is closed unexpectedly.” Reasonableness of the fee estimate Where the City provided a response within 10 business days, it is necessary to review the reasonableness of the City’s fee estimate. Although the City has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 66.74 hours of employee time, it is unclear how

Jeremy Saint Laurent, Esq. SPR23/0614 Page 3 April 14, 2023 the City requires this many hours to produce responsive records. It is also not clear from the City’s estimate how many hours are allocated to search for the records and how many hours are allocated for segregation and redaction. The City must provide further details regarding its fee estimate. Additionally, I find the City must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. It is also not clear what tasks are involved to prepare responsive records for production. As such, the City must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The City must further confirm that $25.00 is the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce the responsive records. For the reasons discussed above, I find the City must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). I encourage Ms. Whitfield and the City to communicate further in order to facilitate producing records efficiently and affordably. Ms. Whitfield may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The City must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the City is ordered to provide Ms. Whitfield with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Tracye Whitfield