Debra Waller v. Newton, City of (SPR 20231924)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 5, 2023 SPR23/1924 Carol Moore City Clerk City of Newton 1000 Commonwealth Avenue Newton Centre, MA 02459 Dear Ms. Moore: I have received the petition of Debra Waller, appealing the response of the City of Newton (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 28, 2023, Ms. Waller stated “[f]or the period of 1/1/19 through 12/31/20, the following information is requested: [1.] ... All written work sent from Utile, Inc. to the City of Newton [including] ... Excel workbooks, analysis results, drawings, PowerPoint slides, and any written reports. [2.] ... All billing invoices sent from Utile, Inc. to the City of Newton, detailing charges for work done. [3.] ... All funds sent from the City of Newton to Utile, Inc.” The City responded on August 7, 2023. Unsatisfied with the City’s response, Ms. Waller petitioned this office and this appeal, SPR23/1924, 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). 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

Carol Moore SPR23/1924 Page 2 September 5, 2023 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 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 August 7th response In its August 7, 2023 response, the City provided a fee estimate of $233.00 representing 11.32 hours of work to produce responsive records. The City indicated that it identified 679 emails. The City stated, “[a]fter the two-hour deduction, 11.32 hours at a rate of $25.00 per hour equals a good faith estimate of $233.00. The City also advised, “[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 stated, “[t]he City will need to review all 679 email documents in order to identify and compile all the documents that are actually responsive to your request, and to segregate and potentially redact any documents that are required to be withheld by law. The City’s review for responsiveness and segregation will be done simultaneously by one City employee at an estimated time of 60 seconds per written document.” Although the Department explained that redactions are necessary, it is unclear whether the Department is charging for exemptions that are not required by law. See G. L. c. 66, § l0(d)(iii) (a fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law for Exemption (a) or attorney client privilege or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv)). Consequently, the Department must clarify if it is assessing a fee for segregation or redaction required by law and the applicable statutes, if any. I encourage the parties to communicate in order to facilitate producing records efficiently and affordably. Ms. Waller 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).

Carol Moore SPR23/1924 Page 3 September 5, 2023 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. Waller, provided 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. Waller 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: Debra Waller