Michael Crescitelli v. Arlington Housing Authority (SPR 20231637)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 24, 2023 SPR23/1637 Jack Nagle Executive Director Arlington Housing Authority 4 Winslow Street Arlington, MA 02474 Dear Mr. Nagle: On July 17, 2023, this office received your petition on behalf of the Arlington Housing Authority (Authority/AHA) seeking an extension of time to produce records, permission to charge for time spent segregating or redacting responsive records, a waiver of statutory limits on fees that may be assessed in responding to the request. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Authority furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On June 30, 2023 R. Michael Crescitelli requested the following four categories of records: Any and all correspondence between [him]self and AHA management, including the Executive Director, the Director of Maintenance and Modernization, the current Commissioner of AHA, and remaining staff, including, but not limited to, any notes, texts, emails, photographs, requests, and responses seeking relief regarding damages, physical/ emotional/ financial claimed to be incurred in [his] defense of, or any other documentation voicing [his] comments/ concerns/ complaints pertaining to [his] claims of insect infestation at [his] apartment, leased to [him] and managed by AHA, . . . within the time frame of March 1, 2023, and June 15, 2023, All inter-departmental correspondence made between members of AHA management, staff, and directing bodies amongst themselves, including any notes, texts, emails, and photographs, pertaining to [his] claims/ concerns/ complaints pertaining to the alleged existence of insect infestation at [his] apartment, leased and managed by AHA, . . . between March 1, 2023, and June 15, 2023, Any and all submissions of work orders, exterminator reports/ conclusions, photographs, and suggestions for resolving concerns/ concerns/ complaints by any 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

Jack Nagle SPR23/1637 Page 2 July 24, 2023 employees of any “reputable pest control company” utilized by AHA in pursuing [his] claims/ concerns/ complaints of the alleged existence of insect infestation at [his] apartment, managed by AHA . . . between March 1, 2023, and June 15, 2023; concerns/ concerns/ complaints by any employees of any “reputable pest control company” utilized by AHA in pursuing [his] claims/ concerns/ complaints of the alleged existence of insect infestation at [his] apartment, managed by AHA . . . during the time frame of March 1, 2023, and June 15, 2023; Details of any treatment by the “reputable pest control company”, and the report(s) submitted by said company to the AHA with regards to the treatment of the verified existence of insect infestation of the apartment, leased, managed, and occupied by [him] by AHA, during the time frame of March 1, 2023, to June 15, 2023. In an email to this office on July 21, 2023, Mr. Crescitelli objects to the Authority’s petition. Petitions for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id.

Jack Nagle SPR23/1637 Page 3 July 24, 2023 The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Request for Additional Time to Produce Responsive Records In its petition, the Authority asks “for an extension of time to respond to a public records request until 9/13/2023, for a request received on or about 6/30/2023.” The Authority provides the following information in support of its request: The AHA has experienced a similar situation as most public agencies regarding staff shortages and turnover and has found it necessary to fill recently vacant positions with newly hired staff within the last 60 days. Additionally, it appears that, [the Authority] may need extensive time to identify, locate, segregate, and extract information in order to determine the extent of exemptions or redactions, as it appears these records may not exist at this time. I find that in light of the capacity of the Authority to produce the request without the extension, the Authority has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The Authority is granted an extension of 30 business days. Petition to Assess Fees – Municipalities The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). 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 a municipality’s petition to allow the municipality 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). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable;

Jack Nagle SPR23/1637 Page 4 July 24, 2023 and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. 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). Current Petition In its petition, the Authority seeks to charge “additional Fees based on [an] attached AHA Good Faith Fee Estimate.” The Authority’s petition and attachments indicate that it seeks to charge fees for segregation and redaction, and to charge a fee in excess of $25.00 per hour. The estimate attached to the Authority’s petition indicates it will require a total of 12 hours by an attorney at an hourly rate of $95.00 to perform the tasks of “clarification,” “identifying,” “locating,” “segregating,” “redaction,” and “determination.” Based on the information provided in the Authority’s petition, I find the Authority has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Accordingly, permission to charge for segregation and redaction not required by law cannot be granted. Please note, however, this does not preclude the Authority from charging for segregation and redaction that is required by law. Additionally, I find the Authority has not met its burden to explain how the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Accordingly, permission to charge a fee in excess of $25.00 per hour cannot be granted.

Jack Nagle SPR23/1637 Page 5 July 24, 2023 Conclusion Accordingly, I find the Authority has established good cause for a time extension of 30 business days as described above. However, as discussed above, permission to charge for segregation and redaction not required by law, and permission to charge a fee in excess of $25.00 per hour cannot be granted. This office encourages Mr. Crescitelli and the Authority to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification to 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). Any subsequent fee estimate from the Authority must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Mr. Crescitelli has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: R. Michael Crescitelli