Michael Crescitelli v. Arlington Housing Authority (SPR 20240365)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 8, 2024 SPR24/0365 Jack Nagle Executive Director Records Access Officer Arlington Housing Authority 4 Winslow Street Arlington, MA 02474 Dear Mr. Nagle: On February 5, 2024, this office received your petition on behalf of the Arlington Housing Authority (Authority) 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, Michael Crescitelli. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On January 23, 2024, Mr. Crescitelli requested: …the following documentation, pertaining to the fire which occurred at [an identified address], commonly known as Chestnut Manor, a property managed by Arlington Housing Authority (AHA), on January 22, 2022: [1] Copies of any and all existing records identifying the specific apartments damaged in the fire, be it by flame, smoke, and/or water… [2] Copies of any and all AHA work orders and AHA maintenance schedules with regards to the commencement and completion of said repairs of the damaged apartments at Chestnut Manor…[.] 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: 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 SPR24/0365 Page 2 February 8, 2024 (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. 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 requests “for an extension of time to respond to a public records request until March 21, 2024, for a request received on or about January 23, 2024 at 5:55 AM.” The Authority provides the following information supporting its request: The AHA will not be able to respond within 10 business days of the receipt of the request due to the difficulty and time required to identify, segregate, and redact certain exempted information. … 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.

Jack Nagle SPR24/0365 Page 3 February 8, 2024 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 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).

Jack Nagle SPR24/0365 Page 4 February 8, 2024 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 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 states “[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.” In an email to this Division on February 8, 2024, Mr. Crescitelli objects to the Authority’s petition to assess fees, arguing “[t]he estimate calls for six hours per task, totaling close to $1000, again, no notice on what I’d be receiving until paid. Most of the processes overlap to some degree. I contend that the entire process could likely take six hours total to complete, if that…[T]he inflated charges are both over 2/3 of my entire monthly income. It is beyond my comprehension that these could be considered “reasonable fees”.” 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 Mr. Crescitelli 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 SPR24/0365 Page 5 February 8, 2024 reasonable). The Authority must provide a response to Mr. Crescitelli within five (5) business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Please note, Mr. Crescitelli has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Michael Crescitelli