Julie Frohlich v. Arlington Housing Authority (SPR 20232332)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 6, 2023 SPR23/2332 Jack Nagle Executive Director Arlington Housing Authority 4 Winslow Street Arlington, MA 02474 Dear Mr. Nagle: On September 29, 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, and 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, it is my understanding that the Authority furnished a copy of the petition to the requestor, Attorney Julie A. Frohlich. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On August 18, 2023, Attorney Frohlich requested 13 categories of records covering the period from January 1, 2022 to the present: [1] All records concerning current or reasonably foreseeable vacant units at Arlington Housing Authority’s (AHA) Drake Village property[;] [2] All records concerning current or reasonably foreseeable vacant units at AHA other than Drake Village or Winslow Tower[;] [3] All records concerning any complaints, written or verbal, by Winslow Tower tenants or Winslow Tower guests, vendors, or contractors concerning [a named individual], including but not limited to records of his actions, language, and behavior at Winslow Tower[;] [4] All records of visits by the Arlington Police Department (APD) to Winslow Tower concerning or involving [a named individual][;] [5] All records concerning any complaints, written or verbal, by Winslow Tower tenants, Winslow Tower guests, vendors, or contractors concerning [a named individual], including but not limited to records of her actions, language, and 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 SPR23/2332 Page 2 October 6, 2023 behavior at Winslow Tower[;] [6] All records of visits by the APD to Winslow Tower concerning or involving [a named individual][;] [7] All records of calls made by [a named individual] to the APD resulting in visits by APD to Winslow Tower about [a named individual][;] [8] All records of calls made by [a named individual] to the APD resulting in visits by APD to Winslow Tower about any other Winslow Tower tenant[;] [9] All records concerning reports by other Winslow Tower tenants of violent or threatening behavior by [a named individual][;] [10] All records concerning any police reports in AHA’s possession regarding [named individuals][;] [11] All records of bad, safe, or unsanitary conditions reported by [a named individual] about the Winslow Tower buildings or grounds[;] [12] All records concerning any complaints made by [a named individual] against any other Winslow Tower tenant[;] [13] All records concerning grievance hearings that involve [a named individual] in any way, including but not limited to as a complainant, respondent, or witness[.] Petition 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.

Jack Nagle SPR23/2332 Page 3 October 6, 2023 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. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(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 11/14/2023, for a request received on or about 09/18/2023.” The Authority provides the following information supporting 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 some of these records may not exist at this time. I find that in light of the capacity of the Authority to produce the records without an extension, the Authority has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The Authority is granted an extension of 30 business days. 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

Jack Nagle SPR23/2332 Page 4 October 6, 2023 first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my understanding 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 a letter to this office on October 4, 2023, Attorney Frohlich objects to the Authority’s petition to assess fees, arguing that “…AHA missed the 10-day deadline for a response and, therefore, it is not permitted to charge a fee for any of the records sought in my August 18, 2023 request…my records request was submitted on August 18, 2023. AHA’s response was due on September 1, 2023. AHA did not provide a response to my request until September 29, 2023, approximately 1 and ½ months after the request was received by AHA.”

Jack Nagle SPR23/2332 Page 5 October 6, 2023 In an email to this office on October 4, 2023, the Authority explains that “Attorney Frohlich did not include the Arlington Housing Authority in any correspondence concerning a public records request until September 18, 2023 at 4:08 PM. As a result, these public records were not requested from the Arlington Housing Authority until September 18, 2023.” In this case, the Authority received Attorney Frohlich’s request on September 18, 2023. The Authority submitted its petition and provided a response to Attorney Frohlich on September 29, 2023, the 9th business day following receipt of the request. Accordingly, I find that the Authority submitted a timely petition. See 950 C.M.R. 32.06(4)(d), (g); see also 950 C.M.R. 32.06(2)(c). In its petition, the Authority requests “[f]or the future opportunity to request fees in excess of $25.00 per hour.” In support of its request, the Authority provides the following information: [T]he hourly rate of lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested is $26.00 per hour. Based on the Authority’s petition, I find the Authority has met its burden to explain how, given the nature of the responsive records, 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). I find the Authority may assess a fee limited to $26.00 per hour for searching, compiling and reproducing records responsive to this request. However, I find the Authority has not met its burden to explain how the response could not be prudently completed without segregation or redaction. 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. Conclusion As described above, I find that the Authority has established good cause for a time extension of 30 business days and to assess a fee limited to $26.00 per hour. Further, this office encourages Attorney Frohlich and the Authority 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 Authority is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be

Jack Nagle SPR23/2332 Page 6 October 6, 2023 reasonable). The Authority must provide a response to Attorney Frohlich within five (5) business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Sincerely, Manza Arthur Supervisor of Records cc: Julie A. Frohlich, Esq.