Tania Gonzalez v. Amesbury, City of - City Clerk (SPR 20231270)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 27, 2023 SPR23/1270 Amanda Haggstrom City Clerk City of Amesbury 62 Friend Street Amesbury, MA 01913 Dear Ms. Haggstrom: I have received the petition of Tania Gonzalez appealing the response of the City of Amesbury (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 12, 2023, Ms. Gonzalez requested the following: [1] All records inspections, [2015- current]. [2] All records- of original building materials used in 1968 to build this public housing development. Non-redacted, unblemished. [3] All records/ subsequent in major repairs for structural integrity of roof, chimney (if applicable) basement, infrastructure of main water pipes, plumbing updates, repairs. [4] All records of sump pumps installed for the basement on the premises [of a specified address] - Amesbury Ma 01913. [5] All records- of fire on the property [of a specified address]- Amesbury, including, [a specified unit]. [6] All records of flooding - basement, all records of dpt. Public works/ removal of flooded waters of the premises. [7] All records - of the total amount of times the property located at [a specified address]- Amesbury Ma was in fact flooded. [8] All records of who, what, and when, which assigned department. [9] Full name of professional contractor/sub-contractors who were hired by the town, by Amesbury Housing Authority to extract all flooded waters in the basement of premises. [10] All records of “full cleanup of IICRC Institute of Inspection, Cleaning and Restoration Certification according to both the CDC and the EPA standard protocols for remediation of mold from chronic dampness. 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

Amanda Haggstrom SPR23/1270 Page 2 June 27, 2023 The City responded on May 26, 2023, indicating it does not possess records responsive to Part 2, and Parts 4-10 of the request, and providing a fee estimate for the other parts of the request. Unsatisfied with the City’s response, and objecting to the fees, Ms. Gonzalez 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 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. Fee Estimates - Municipalities 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 2 (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).

Amanda Haggstrom SPR23/1270 Page 3 June 27, 2023 Current Appeal In her appeal petition, Ms. Gonzalez contends that “the City of Amesbury is refusing to turn over records which are available to the public.” Additionally, she contends that “these records should be at “no cost” to the participant in affordable housing.” Status of the Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Gonzalez’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Ms. Gonzalez is advised that although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). The City’s May 26th Response In its May 26, 2023 response, the City states that it does not possess records responsive to Part 2, and Parts 4-10 of the request, and provides a fee estimate for the other parts of the request. Possession, Custody, or Control Please be advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Additionally, in accordance with the Public

Amanda Haggstrom SPR23/1270 Page 4 June 27, 2023 Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In its May 26th response, the City explains that it does not possess records responsive to Part 2, and Parts 4-10 of the request, and also advises Ms. Gonzalez to contact the Amesbury Housing Authority in seeking these categories of records. Additionally, in an email to this office on June 13, 2023, a representative of the City confirms that the City does not possess records responsive to these parts of the request. Where the City has confirmed that it does not possess records responsive to Part 2, and Parts 4-10 of the request, and has identified an agency that may be in possession of the records, I find that the City has met its burden in responding to Part 2, and Parts 4-10 of the request. The City’s Fee Estimate In its May 26th response, the City provides a total fee estimate of $50. In support of its fee estimate, the City states the following information: It is expected that to compile the information/documents ... it will take approximately two hours, with the maximum average hourly rate of $25.00 for performing such work. The employee times quoted is charged at the hourly rate of the lowest paid person capable of searching for the responsive records, in accordance with 950 CMR 32.07(2)(i).... [B]ecause the City has less than 20,000 residents, pursuant to the last Decennial U.S. Census. However, based on the City’s response, it is unclear why the City requires two hours to compile the requested records. The City must provide further details regarding the tasks involved and what each task entails. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). 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). This office encourages Ms. Gonzalez and the City to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(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 the records sought more efficiently and affordably). Conclusion Accordingly, the City is ordered to provide Ms. Gonzalez 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.

Amanda Haggstrom SPR23/1270 Page 5 June 27, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Tania Gonzalez