Rosemary Macero v. Boston Planning & Development Agency (SPR 20240069)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 23, 2024 SPR24/0069 Colin Donnelly, Esq. Counsel Boston Planning & Development Agency One City Hall Square, 9th Floor Boston, MA 02201 Dear Attorney Donnelly: I have received the petition of Attorney Rosemary Macero appealing the response of the Boston Planning & Development Agency (Agency/BPDA) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On October 19, 2023, Attorney Macero emailed a request for the following records related to a named property: [1] All record of rent payments from 1991 to present including amount and date [2] All correspondence with the YMCA [3] All correspondence with any party relative to use of 150 3rd Ave/Constitution Inn at any Time [4] All plans provided to BPDA/BRA for any construction on premises from 2000 to present [5] All default notices to YMCA [6] All Lease amendments, request for assignment or sublet and responses from BPDA and any other document that pertains to use, occupancy of the 150 3rd Ave building [7] Records of any and all money received by the BPDA at any time for or on account of 150 3rd Ave pursuant to the Lease or otherwise [8] All documents which reference financing, refinancing of any note, bonds or other debt instrument which is secured by 150 3rd Ave including any documents executed by the BPDA/BRA to permit mortgage financing or debt financing using the 150 3rd Ave property as collateral by any party at any time and any refinance of any debt instrument and all associated documents related thereto. [9] All audits of income paid to or received by the YMCA or BPDA/BRA related to payments, made by or to or on account of the YMCA for any reason including any payments made for work done at the 150 3rd Ave Premises. 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

Colin Donnelly, Esq. SPR24/0069 Page 2 January 23, 2024 [10] All correspondence with Mass Housing Finance Development, the City of Boston, the Commonwealth of Massachusetts related to any moneys requested, received, paid by or otherwise relating to moneys received by or on account of the YMCA, the BPDA/BRA on account of the 150 3rd Ave Property at any time. [11] All correspondence with the Secretary of the Interior or the US Government relative to audits of the Charlestown Navy Yard since its transfer including any audits, payments or other communications of any type or nature with the US Govt relative to the Charlestown Navy Yard including email, text message, phone records, audits, payments to or from the US Govt and any payments made on account of the YMCA as an Armed Services YMCA. [12] Any and all documents provided, produced or supplied by any proponent of the conversion of the 150 3rd Ave property to the “Helm” or the “Independence” related to the proposal of St. Francis and the POUA or their representatives at any time. [13] Documents identified in response to [Attorney Macero’s] request for answers to questions for proponents attached hereto for the presentation by proponents on October 19, 2023 attached hereto. Previous Appeal This request was the subject of a previous appeal. See SPR23/2999 Determination of the Supervisor of Records (December 28, 2023). In my December 28th determination, I found it was unclear whether the requested records were in the Agency’s possession. Subsequently, the Agency responded on January 2, 2024, referring back to an earlier November 28, 2023 fee estimate. Unsatisfied with the Agency’s response, Attorney Macero further appealed, and this case was opened as a result. Subsequent to the opening of this appeal, the Agency provided a supplemental response on January 9, 2024. 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. Attorney 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

Colin Donnelly, Esq. SPR24/0069 Page 3 January 23, 2024 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). G. L. c. 66, § 10(e) Please note that G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” In an email to Attorney Macero on November 13, 2023, an attorney for the Agency acknowledges receipt of her request and explains that her “email dated October 19th was never received by any member of the Agency’s staff as the email accounts to which [Attorney Macero] sent [her] correspondence were incorrectly addressed with ‘@bpda.gov.’” Subsequently, the Agency provided Attorney Macero with a fee estimate on November 28, 2023. In her appeal petition, Attorney Macero contends that she “received a demand for payment of $250 for 10 hours time” and she further contends that “that demand violated the statute.” Where the Agency received Attorney Macero’s request on November 13, 2023, and responded on November 28, 2023, by providing a fee estimate under G. L. c. 66, § 10(b), I find the Agency may assess a fee to produce responsive records.

Colin Donnelly, Esq. SPR24/0069 Page 4 January 23, 2024 The Agency’s November 28th and January 9th Fee Estimate In its November 28, 2023 response, the Agency provides a fee estimate for a total of $250, and provides the following explanation in support of its estimate: Concerning [the] request for communications ... [a]n initial search for emails produced thousands of results, many of which are not pertinent to the Constitution Inn project and will need to be sorted. Due to the large scale of [the] request, a fee estimate will need to be instituted to compensate for the time that is required to locate and compile the responsive documents and communications, which may likely exceed 12 hours. . . . It is estimated that BPDA staff will spend approximately 12 hours searching and compiling the requested documents/communications. The first two hours of search time are provided at no charge, and the $25.00 an hour rate is the rate for the lowest paid employee capable of completing the search. Accordingly, the fee to produce these records will be $250. In its January 9, 2024 response, the Agency provides the following additional explanation in support of its fee estimate: [The Agency] explained that the amount of $250.00 was based on [the] expectation that the time it would take ... to search for and compile the requested records would exceed a minimum of twelve (12) hours, that the first two (2) hours of search time are provided at no charge, and that the $25.00/hour rate is the rate for the lowest paid employee capable of completing the search. The estimated twelve hours of staff time required to respond to Macero’s Records Request is based on the work required to search for, retrieve, compile, and manually review the many thousands of emails and records stored in the BPDA’s digital archives. For example, Macero’s request for “all correspondence with the YMCA” has yielded 26,869 emails (64,035 pages) dating back to 2001 and the request for “all correspondence with any party relative to the use of 3rd 150 Ave/Constitution Inn at any time” has yielded 41,114 emails (273,814 pages) dating back to 2003. Many of these records are not responsive to Macero’s Request for Records. For example, in [the] preliminary review of emails from the search for “all correspondence with the YMCA” [the Agency] has identified emails that contain the address of 150 3rd Ave/Constitution Inn in the email signature line but in no way relate to the BPDA’s regulatory review or control of the property at that location. As the search capabilities available in [the Agency’s] digital document retention platforms are limited, and thus, their results imperfect, these emails will still need to be reviewed in order to determine actual relevancy and

Colin Donnelly, Esq. SPR24/0069 Page 5 January 23, 2024 responsiveness to Macero’s request. And then, a further review will be required to determine whether any of the documents must be withheld or redacted as required by law. In light of the Agency’s November 28th and January 4th responses, where the Agency has indicated that it will not charge for the first two hours of work, has confirmed that it will charge at the rate of the lowest paid employee capable of completing the tasks, and has explained the tasks involved in searching for and compiling the records, I find the Agency has met its burden to explain how it has provided a reasonable fee estimate for the production of records responsive to this request. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). This office encourages Attorney Macero and the Agency 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 the records sought more efficiently and affordably). Conclusion As set forth above, I find the Agency has met its burden in responding to Attorney Macero’s request at this time. Any revision to the request would result in the requirement to issue a revised fee estimate. Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Rosemary Macero, Esq.