Todd Wallack v. Boston Housing Authority (SPR 20232861)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 8, 2023 SPR23/2861 Sophia Elia Paralegal Boston Housing Authority 52 Chauncy Street Boston, MA 02111 Dear Ms. Elia: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Boston Housing Authority (Authority/BHA) to a request for public records. See G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On October 26, 2023, Mr. Wallack requested the following records: [1.] All email or other correspondence between Authority officials and the state Department of Housing and Community Development with the phrase waiver, fine or ‘Vacancy system’ since January 1, 2019. [2.] Copies of the Authority annual reports for the past four years[.] The Authority responded on November 9, 2023. Unsatisfied with the Authority’s response, Mr. Wallack petitioned this office and this appeal, SPR23/2861, 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

Sophia Elia, Esq. SPR23/2861 Page 2 December 8, 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 how 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)(ii); 950 C.M.R. 32.06(4). The Authority’s November 9th Fee Estimate In the Authority’s November 9, 2023 response, the Authority provided a fee estimate of $224.84 and stated the following: [1.] Estimated time to search/compile/scan each record = 11 hours [2.] The lowest BHA hourly rate for search costs: = $20.44 [3.] BHA’s Good Faith Search Fee Estimate = $20.44 x 11 hours = $224.84 The Authority further stated “... BHA will require an additional 25 business days from receipt of the initial PRR to respond to your PRR due to the difficulty of the request (part of the request seeks specific correspondence and/or emails for a four year period). This difficulty is compounded by the fact BHA is experiencing temporary staffing shortages due to the current economy’s hiring decline. Consequently, subject to the further terms of this email, BHA will respond to your PRR by or before December 4, 2023.” Although the Authority has estimated that the process of producing the responsive documents for production will take 11 hours of employee time, it is unclear from the Authority’s estimate how many hours are allocated to searching and compiling, and if there are any hours allocated for segregation or redaction of the records. In addition, it is not clear what tasks are involved to prepare responsive records for production. As such, the Authority must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, the Authority must clarify whether the two hours have been considered pursuant to the Public Records Law in which, municipalities may not assess a fee for the first two hours of personnel time taken to search for, compile, redact, or reproduce the record(s) requested unless said municipality is comprised of 20,000 people or less. See G.L. c. 66, § 10(d) and 950 C.M.R. 32.07(2). For the reasons discussed above, I find the Authority must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with

Sophia Elia, Esq. SPR23/2861 Page 3 December 8, 2023 G. L. c. 66, § 10(d). Conclusion Accordingly, the Authority is ordered to provide Mr. Wallack with a response to his request, 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 the response to this office at pre@sec.state.ma.us. Mr. Wallack may appeal the substantive nature of the Authority’s response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack