Colman Herman v. New Bedford, City of - Clerk's Office (SPR 20232867)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 13, 2023 SPR23/2867 Nicholas DeMarco, Esq. Associate City Solicitor City of New Bedford 133 William Street New Bedford, MA 02740 Dear Attorney DeMarco: I have received the petition of Colman Herman appealing the response of the City of New Bedford (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 30, 2023, Mr. Herman requested, “... copies of any and all communications related to UMass Dartmouth recently vacating a downtown New Bedford building that once was a department store.” On August 30, 2023, Mr. Herman clarified his request to include the time period January 1, 2023 to the present. Subsequently, Mr. Herman modified his request on August 31, 2023 to include three [identified] names. Prior Appeal The requested records were the subject of a prior appeal. See SPR23/2603 Determination of the Supervisor of Records (November 10, 2023). In my November 10th determination, it was my understanding that the City would provide a further response to Mr. Herman. The City responded on November 28, 2023. Unsatisfied with the City’s response, Mr. Herman petitioned this office and this appeal, SPR23/2867, 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 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

Nicholas Demarco, Esq. SPR23/2867 Page 2 December 13, 2023 public record. G. L. c. 66, § 10(d)(i). 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 November 28th Fee Estimate In the City November 28, 2023 response, the City provided a fee estimate of $95,794.25 based upon the City identifying 115,013 items responsive to the request. The City stated as follows: 115,013 items @ 2 minutes per item to segregate, redact and/or withhold = 782 minutes 230,026 minutes @ 1 hour/60 minutes = 3,833.77 hours The City further opined that as the City has a “population of more than 20,000 individuals, and thus it subtracted these two hours from the previously calculated time, coming to a final calculation of 3,831.77 hours needed to process [the] ... request in its current rendition.” Additionally, the City stated “[t]he lowest paid employee capable of performing the necessary work to respond to this request has an hourly rate that exceeds $25 per hour. Thus the City assessed a fee of $95,794.25...” Although the City has opined that the time to segregate, redact and/or withhold responsive documents for production results in a “final calculation of 3,831.77 hours needed to process [the] ... request in its current rendition,” it is unclear if any search time is included in this calculation. It is also unclear which statutes the City will employ to segregate and make redactions pursuant to Exemption (a) of the Public Records Law. As stated above, 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). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Further, the City must provide further explanation as to how it arrived at the calculation of 230,026 minutes @ 1 hour/60 minutes and why it requires 2 minutes to segregate and/or redact each item. The City must also state what tasks are involved in its calculation. I encourage Mr. Herman and the City to communicate in order to facilitate producing

Nicholas Demarco, Esq. SPR23/2867 Page 3 December 13, 2023 records efficiently and affordably. Mr. Herman may wish to include applicable time periods or factors to enable the search to be processed. 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) (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). 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 Mr. Herman with a response to his request, 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. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman