Gar Chung v. Medford Contributory Retirement System (SPR 20230968)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 17, 2023 SPR23/0968 Michelle LaJoie Records Access Officer Medford Contributory Retirement System City Hall, Room 215 85 George P. Hassett Drive Medford, MA 02155 Dear Ms. LaJoie: I have received the petition of Michael Sacco, Esq., of The Law Offices of Michael Sacco, P.C., on behalf of the Medford Contributory Retirement System (Retirement System/Board) seeking permission to charge in excess of the statutory fees in responding to a request. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Retirement System furnished a copy of this petition to the requestor, Gar Chung, of Financial Investment News. Id. On March 20, 2023, Mr. Chung requested “…all proposals received from an opportunistic and distressed debt RFP that was issued in May 2022.” Previous Determinations This request was the subject of previous determinations. See SPR23/0613 Determination of the Supervisor of Records (April 13, 2023, May 8, 2023). In my April 13th determination, I found that it was unclear if the Retirement System possesses responsive records. On April 18, 2023, the Retirement System requested that I reconsider my April 13th determination. In my May 8th determination, I declined to reverse the findings in my April 13th determination. Petition 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). 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

Michelle LaJoie SPR23/0968 Page 2 May 17, 2023 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). 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. 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). Current Petition In its May 10th petition, the Retirement System explains:

Michelle LaJoie SPR23/0968 Page 3 May 17, 2023 [T]he Board is requesting to charge a fee in excess of $25 per hour in producing the documents responsive to the request. As reasons therefor, the records Mr. Chung seeks are in the possession and control of the Board’s Investment Consultant, New England Pension Consultants, LLC (“NEPC”), and NEPC informs the Board that the lowest hourly rate employee who is qualified to complete this task charges $40 an hour, which is what the Board will have to pay NEPC to respond to this request, as this service is not covered in the Board’s contract with NEPC. The Retirement System has not demonstrated why it must charge $40.00 per hour to produce the responsive records. Please be advised that a custodian cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § l0(a); G. L. c. 66, § l2. See also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). ----------------------------- Conclusion Consequently, I find that the Retirement System has not met its burden to assess fees in excess of $25.00. Further, this office encourages the Retirement System and Mr. Chung to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii)(an agency 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 to produce records sought more efficiently and affordably). When preparing a fee estimate for the provision of the requested records, the Retirement System is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Retirement System must provide a response to Mr. Chung within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Sincerely, Manza Arthur Supervisor of Records cc: Gar Chung Michael Sacco, Esq.