KIIYP Elder Abuse Watchdog v. Gardner, City of - Law Department (SPR 20231731)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 3, 2023 SPR23/1731 John M. Flick, Esq. City Solicitor Flick Law Group, P.C. 144 Central Street Gardner, MA 01440 Dear Attorney Flick: On July 27, 2023, this office received your petition on behalf of the City of Gardner (City) seeking a waiver of statutory limits on fees that may be assessed in responding to a request for public records. 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, it is my understanding that the City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On July 13, 2023, the requester sought: 1. [R]ecords that contain both… [the name of an identified individual] and any iteration of… [the name of a second identified individual]…. This… includes all emails sent by either party with the other party’s name, police reports, tax records, payment records, etc. from the period July 2021 to present[;] 2. [R]ecords that contain… [two named addresses]… both in Gardner, MA…. This… pertains to all emails that have either one or both addresses, census records, and police reports from the period of July 2021 to present[;] 3. [R]ecords of the marriage between [two identified individuals] including but not limited to census records and marriage certificates[;] 4. [R]ecords that contain the names of [an identified individual] and/or [a second identified individual] that were created between July 2021 to present, including but not limited to email communications and police reports[;] 5. [R]ecords that contain… [two named addresses]… both in Gardner, MA…. Any and all police records for [an identified individual]… that were created between January 1, 2019 to present[;] 6. [R]ecords pertaining to the voting record of [an identified individual]… including but not limited to voter registrations and a list of all local, state, and federal elections voted in in the City of Gardner. 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

John M. Flick, Esq. SPR23/1731 Page 2 August 3, 2023 In an email to this office and the City on July 27, 2023, the requester opposed the City’s petition. Petition to Assess Fees - Municipalities The 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 or to charge in excess of $25 an hour for the provision of public 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 the request is not 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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

John M. Flick, Esq. SPR23/1731 Page 3 August 3, 2023 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 dated July 27, 2023, the City seeks “to change [sic] a fee greater than $25.00 per hour for the time to review, segregate, and redact records responsive” to the request. In support of its request, the City states: Most of the records sought by this request require a substantive legal review to determine what, if any exceptions apply to the requested records. Many of the records sought may be exempt pursuant to statutes protecting domestic relation matters, among other statutory exclusions. The Law Department consists of two employees, the City Solicitor and the Assistant City Solicitor. The Assistant City Solicitor is new to the department and has no experience with public record responses. Therefore, the lowest paid employee in the Law Department qualified to review the documents is the City Solicitor. The Law Department does not have any administrative staff. The City’s Solicitor’s current hourly rate (based on the established salary) is $44.69. I anticipate three to five hours to segregate and analyze all records related to this request and redact the necessary information, and create an exemption/privilege log. Whereas the City of Gardner has over 20,000 residents, there will be no charge for the first two hours. Subsequent to the opening of this petition, the City indicated in an email to this office dated July 27, 2023 that the hourly rate of the lowest paid City employee who has the necessary skill required to search for, compile, segregate, redact or reproduce records responsive to the request is $24.86. It is my understanding that in a conversation between this office and the City on July 31, 2023, the City confirmed that the lowest paid City employee who has the necessary skill to complete this task has an hourly rate of $24.86. Although the City states that “[m]any of the records sought may be exempt pursuant to statutes protecting domestic relation matters, among other statutory exclusions,” it has not provided information regarding what records it intends to produce and why such records are likely to contain exempt information. In addition, it is unclear how the request could not be prudently completed without a fee in excess of $25 per hour; specifically, it is uncertain why this task cannot be completed by the lowest paid City employee who has the necessary skill required to segregate or redact records responsive to the request. Conclusion Accordingly, I find the City has not met its burden to explain how the response could not be prudently completed without redaction, segregation, or by assessing a fee in excess of $25.00.

John M. Flick, Esq. SPR23/1731 Page 4 August 3, 2023 Further, this office encourages the City and the requester to continue 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 records sought more efficiently and affordably). When preparing a fee estimate for the provision of the requested records, the City is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary and how the redactions are required by law. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The City must provide a response to the requester within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). The requester may appeal the City’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: “Keep It In Your Pants” Elder Abuse Watchdog