Anastasia E. Lennon v. New Bedford, City of - Office of The City Solicitor (SPR 20231055)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 1, 2023 SPR23/1055 Nicholas DeMarco, Esq. Associate City Solicitor City of New Bedford 133 William Street New Bedford, MA 02740 Dear Attorney DeMarco: I have received the petition of Anastasia E. Lennon, of the New Bedford Light, appealing the response of the City of New Bedford (City) to a request for public records. On May 2, 2023, Ms. Lennon requested records relating to alleged misconduct by an employee of the City’s Police Department as well as certain communications from May 1, 2022 to May 1, 2023. The City responded on May 16, 2023. Unsatisfied with the City’s response, Ms. Lennon petitioned this office and this appeal, SPR23/1055, 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 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 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

Nicholas DeMarco, Esq. SPR23/1055 Page 2 June 1, 2023 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The City’s May 16th response In its May 16, 2023 response, the City provided a fee estimate of $913.25 and stated that “36.53 hours [(38.53 hours) – (2 hours at no charge)] of work that will be needed to respond to your request.” The City further stated, “[t]he lowest paid employee capable of performing the necessary work to comply with your request has an hourly rate that exceeds $25.00 per hour.” The City also advised, “...the Department has identified 853 emails and 213 corresponding attachments that pose to be encapsulated in your request. Before providing you with the material, the Department will need to verify the responsiveness of each email/ attachment, segregate each email/attachment, and then make any redactions/withholdings required by law. The Department anticipates that it may need to redact/withholding records pursuant to G.L. c. 4, § 7(26)(a), the attorney-client privilege, and the work-product doctrine. Under Exemption (a), it is anticipated that redactions/withholdings may have to be made according, but not limited, to the following statutes:” [1.] Personal information, including, but not limited to social security and driver’s license numbers pursuant to G.L. c. 93H, § 1. [2.] Registry of Motor Vehicle Information pursuant to the Driver’s Privacy Protection Act, 18 U.S.C. § 2721. [3.] Medical records pursuant to the HIPPA Privacy Rule, 45 C.F.R. § 164.502(a)(1). [4.] Victim and victim family information pursuant to G.L. Chapter 66, §10B. [5.] Sex victim and rape report information pursuant to G.L. Chapter 265, § 24C and G.L. Chapter 41, § 97D. [6.] Domestic violence reports pursuant to G.L. Chapter 41, § 97D1. [7.] Juvenile Delinquency case information pursuant to G.L. Chapter 119, § 60A. [8.] Criminal Offender Record Information pursuant to G.L. Chapter 6, § 167. Although the City has estimated that the process of compiling, reviewing, and preparing responsive documents for production will cost $913.25 or approximately 36 hours, it is unclear why the City requires this many hours to produce responsive records. It is unclear from the City's estimate how many hours are allocated to search, and how many hours are allocated for segregation, and redaction of the records. In addition, it is 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).

Nicholas DeMarco, Esq. SPR23/1055 Page 3 June 1, 2023 I encourage the parties to communicate in order to facilitate producing records efficiently and affordably. The requestor may wish to narrow the scope of the request 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) (a 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 municipality to produce records sought more efficiently and affordably). 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). Conclusion Accordingly, the City is ordered to provide a response to Ms. Lennon in a manner consistent with this order, the Public Records Law and its Regulations within ten (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. Ms. Lennon may appeal the substantive nature of the City’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Anastasia E. Lennon,