Joseph Viglione v. Medford, City of (SPR 20232075)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 15, 2023 SPR23/2075 Janice Spencer Records Access Officer City of Medford Law Department City Hall, Room 206 85 George P. Hassett Drive Medford, MA 02155 Dear Ms. Spencer: I have received the petition of Joseph Viglione appealing the response of the City of Medford (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 3, 2023, Mr. Viglione requested the following: 1) All documents concerning [a named individual’s] conduct and activities during [a specified incident] be they police reports, newspaper articles, internal documents at city hall and/or the police department, 911 calls, everything concerning the event. 2) [The individual’s] oath of office as city councilor for the past twelve years. One document from one of the elections is fine unless the documents for oath of office changed over the years. 3) Minutes of [a specified] council meeting... 4) Documents requested on [the individual’s] interaction with MPD... The City responded on August 11, 2023, providing copies of the oaths of office, and a fee estimate for other records. Objecting to the fees, Mr. Viglione appealed, and this case was opened as a result. Previous Appeal In his appeal petition, Mr. Viglione refers to a previous appeal, SPR23/1779, which concerned “the current contracts between the City ... and cable providers.” See SPR23/1779 Determination of the Supervisor of Records (August 4, 2023). However, in an email to this office on August 31, 2023, Mr. Viglione states that he is “concerned about the ‘Good Faith Estimate’” provided to him by the City on August 11, 2023, in response to the August 3rd request described 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

Janice Spencer SPR23/2075 Page 2 September 15, 2023 above. 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).

Janice Spencer SPR23/2075 Page 3 September 15, 2023 The City’s August 11th Fee Estimate In its August 11, 2023 response, the City provides a total fee estimate on $137.50. The City provides the following information in support of its fee estimate: The good faith estimate to search for and locate such materials in response to this request is 7.5 hours, which will be conducted by the City’s IT staff (for electronic searches) and staff at the Medford Police Department. [Mr. Viglione] will not be charged for the first two hours of work given Medford’s population under the Public Records Law. The total estimate to search for and locate the voluminous hard copy and paper records for 5.5 hours as detailed above is $137.50 (at the reduced $25/hour rate). To receive the records, please submit payment to this office made out to the City of Medford, and the necessary work will be conducted, subject to any withholding or redactions under the Public Records Law. Additionally, the City explains that the fee will “be charged ... at the hourly rate of the lowest paid person capable of compiling, segregating, redacting, and reproducing responsive records” and explains that this amount “shall not exceed $25.00 per hour.” Based on the City’s response, it is unclear why it requires 7.5 hours to search for and compile the records. The City must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to searching, compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Consequently, 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 Mr. Viglione and the City 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 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). Any revision to the request would result in the requirement to issue a revised fee estimate. Conclusion Accordingly, the City is ordered to provide Mr. Viglione with a response to his 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 the response to this office at pre@sec.state.ma.us.

Janice Spencer SPR23/2075 Page 4 September 15, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Joseph Viglione