Tracye Whitfield v. Springfield, City of - Office of the City Clerk (SPR 20230847)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 11, 2023 SPR23/0847 Jeremy Saint Laurent, Esq. Records Access Officer for the City of Springfield First Associate City Solicitor City of Springfield Law Department 36 Court Street 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 made six separate requests for “copies of all ARPA applications, any supporting documents submitted with applications, the award letters of awardees from” a different set of numbered “rounds,” specified in each request. 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.” Previous Appeals This request was the subject of previous appeals. See SPR23/0614 Determination of the Supervisor of Records (April 14, 2023), SPR23/0615 Determination of the Supervisor of Records (April 14, 2023), SPR23/0616 Determination of the Supervisor of Records (April 14, 2023), SPR23/0617 Determination of the Supervisor of Records (April 14, 2023), SPR23/0618 Determination of the Supervisor of Records (April 14, 2023), SPR23/0619 Determination of the Supervisor of Records (April 14, 2023). In my April 14th determinations, I ordered the City to revise its fee estimates or provide further explanation of how the fees are consistent with G. L. c. 66, § 10(d). Subsequently, the City responded on April 28, 2023. Unsatisfied with the City’s response, and again objecting to the fees, Ms. Whitfield further appealed, and this case was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public 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. SPR23/0847 Page 2 May 11, 2023 records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. The City’s March 15th and April 28th Fee Estimate On March 15, 2023, the City provided a separate fee estimate for each of the six requests. In its April 28, 2023 response, the City provided additional information on its fee estimates. The City states in each March 15th fee estimate that it is not charging for the first two hours of work. The total hours and fees for each request are summarized below with information from each of the City’s estimates: Request Applications Time(Hours) Charge “rounds 1, 2” 21 44.75 hours $1,068.75 “rounds 3, 4” 42 117.75 hours $2,893.75 “rounds 4, 5” 38 93.24 hours $2,281.00 “rounds 6, 7” 27 68.49 hours $1,662.41 “rounds 8, 9” 29 66.74 hours $1,618.50 “rounds 10” 62 154.25 hours $3,806.25 In each March 15th fee estimate, the City states the following: The total amount of applications [Ms. Whitfield has] requested through the six record requests entails a total of 210 applications. These documents pertain to the deployment of certain federal Coronavirus State and Local Fiscal Recovery (CSLFR) funds allocated to the City. Many of these documents are hundreds of pages long and contain proprietary and personal information that will need to be redacted. . . . The Director of Disaster Recovery and Compliance must compile, segregate, and scan the applications. The Public Records Coordinator will review each application to make redactions. The redaction process has been calculated using the average amount of pages per application type (Page estimates: 100 pages per

Jeremy Saint Laurent, Esq. SPR23/0847 Page 3 May 11, 2023 Non-Profit Application; 50 pages per Small Business Application; 20 pages per Build Back Springfield; 20 pages per Neighborhood Economic Recovery Fund Application) times the estimated time to review and redact (1 minute per page to review for redactions). The 2nd Associate City Solicitor must approve redactions before a record is released at the rate of 0.5 per minute per page In its April 28th response, the City states that “the fee was calculated at a rate of $25 per hour of work, which is attributed to the lowest paid employee available to complete the required compilation and redaction.” With its April 28th response, the City also provides a separate table for each request, indicating the amount of time each staff member will spend on the tasks described above. Although the City has provided information on the hourly rate, the amount of time required, and the tasks involved in responding to the request, it remains unclear whether the redactions for which the City is charging are required by law. The City is advised that in accordance with the Public Records Law, 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). Information that is “required by law” to be segregated or redacted is found in statutes that explicitly indicate that certain records or information are not public records. Some common examples are the student record statute (G. L. c. 71, § 34D), the Criminal Offender Record Information (CORI) Act (G. L. c. 6, § 167), and laws regarding the confidentiality of domestic violence records (G. L. c. 41, § 97D; G. L. c. 41, § 98F; G. L. c. 209A, § 8). These statutes operate through Exemption (a) of the Public Records Law. Segregation or redaction under the attorney-client privilege is also interpreted to be “required by law.” Accordingly, the City must provide further explanation as to whether the redactions described in its fee estimate are required by law. Conclusion For the reasons discussed above, I find the City must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Accordingly, the City is ordered to provide Ms. Whitfield with a response to her request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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.

Jeremy Saint Laurent, Esq. SPR23/0847 Page 4 May 11, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Tracye Whitfield