Greta Jochem v. Springfield Redevelopment Authority (SPR 20232693)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 20, 2023 SPR23/2693 Amanda Pham Executive Director Springfield Redevelopment Authority 70 Tapley Street Springfield, MA 01104 Dear Ms. Pham: I have received the petition of Greta Jochem, of The Springfield Republican, appealing the response of the Springfield Redevelopment Authority (Authority) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 27, 2023, Ms. Jochem requested the following: All redevelopment proposals submitted to the city and/or the Springfield Redevelopment Authority in 2023 for the Clock Tower Building, also known as the Masonic Block, at 113-117 State St., the Colonial Block at 1139-1155 Main St. and 11-21 Stockbridge St. The Authority responded on October 13, 2023, providing a fee estimate. Objecting to the fees, Ms. Jochem appealed, and this case was opened as a result. In an email to Ms. Jochem and this office on November 15, 2023, the Authority provided a supplemental response concerning its fee estimate. 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. 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

Amanda Pham SPR23/2693 Page 2 November 20, 2023 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). Current Appeal In her appeal petition, Ms. Jochem contends that: [T]he number of hours and number of people needed to work on this request in the Redevelopment Authority’s estimate seems unnecessary to me. The authority says that 14 hours of work needs to be done between the Deputy Director, Administrative Assistant and General Counsel. Documents were already available to Redevelopment Authority members, so they should already be compiled. The authority also did not cite specific exemptions to the public record law under which material could be redacted. The Authority’s October 13th and November 15th Fee Estimate In its October 13, 2023 response, the Authority provides a total fee estimate of $300, and

Amanda Pham SPR23/2693 Page 3 November 20, 2023 provides additional information concerning its estimate in an email on November 15, 2023. In its October 13th response, the Authority provides a chart, including the following information, concerning the amounts to be charged: TITLE TIME HOURLY RATE CHARGE (HOURS) (CAPPED RATE) Administrative Assistant 3.0 $27. 63 ($25.00) $75.00 Deputy Director 7.5 $41. 76 ($25.00) $187.50 General Counsel 3.5 $65.76 ($25.00) $87.50 = 14.00 $350.00 - 2 ... [$25 .00 X 2) -$50.00 = 10.0 $300.00 [sic] The Authority also specifies that it will not charge for the first two hours of time, and that it will not charge greater than $25 per hour. Additionally, in its November 15th response, the Authority explains the following: The Good Faith Estimate provided to the requesting party is based on the large number of documents related to this request (approx 500 pages). The lowest paid qualified staff members have been identified for the search, assembly and review of documents, and the number of hours quoted in the estimate reflects the high volume of documents associated with the request. As has been explained to the requesting party, if the result of legal counsel’s review of potential redactions under M.G.L. c. 7(26) is that no redactions or withholdings are necessary, then the costs associated with the administrative time for production of documents will not apply and that amount shall be refunded to the requesting party, due to the fact that the unredacted materials are available electronically and no administrative actions would be needed to respond to the request. The specific basis for any exemptions justifying redactions or withholding records is not currently available, as legal counsel has not yet conducted a review of the documents in question. As such, it has not yet been determined whether any redactions/withholding will ultimately be required. In accordance with the statute, specific information will be provided as to any redactions or withholdings after the completion of legal counsel’s review, and the requesting party would then have the opportunity to appeal the decision. It should be noted that the records will be provided electronically (as requested) and that in the event that redactions are necessary, the requesting party will not be charged for the costs associated with making copies of the redacted materials, only for the hours associated with the administrative staff time for said actions. Based on the information provided in the Authority’s October 13th fee estimate, it is unclear how many hours the Authority requires in order to produce records, and for how many hours the Authority intends to assess fees. Specifically, the Authority estimates a total time of 14

Amanda Pham SPR23/2693 Page 4 November 20, 2023 hours, indicates that it intends to charge fees for 10 hours, and calculates a total fee of $300. The Authority must clarify this. Further, it is unclear why the Authority requires the amounts of time indicated above for “search, assembly and review of documents.” The Authority must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, in accordance with the Public Records Law, 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). The Authority is advised that information that is “required by law” to be segregated or redacted is found in statutes that explicitly indicate that certain records or information are not public records. Some common examples are the student record statute (G. L. c. 71, § 34D), the Criminal Offender Record Information (CORI) Act (G. L. c. 6, § 167), and laws regarding the confidentiality of domestic violence records (G. L. c. 41, § 97D; G. L. c. 41, § 98F; G. L. c. 209A, § 8). These statutes operate through Exemption (a) of the Public Records Law. Segregation or redaction under the attorney-client privilege is also interpreted to be “required by law.” Accordingly, the Authority must provide further explanation as to whether the redactions described in the fee estimate are required by law. For the reasons discussed above, I find the Authority must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Authority is ordered to provide Ms. Jochem with a response to her 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. Sincerely, Manza Arthur Supervisor of Records cc: Greta Jochem