Grace Ferguson v. New Bedford, City of - Office of The City Solicitor (SPR 20240381)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 20, 2024 SPR24/0381 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 Grace Ferguson, of the New Bedford Light, 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 December 4, 2023, Ms. Ferguson requested the following records: [1.] Copies of all Appellate Tax Board settlement agreements since January 1, 2020 for commercial property owners in New Bedford[;] [2.] A tally of all Appellate Tax Board settlement agreements since January 1, 2020 for residential property owners in New Bedford[.] On December 11, 2023, Ms. Ferguson appeared to modify her request and stated, “... is there a way we could narrow this request? I'm primarily interested in abatements for commercial landlords, so I would be comfortable with just a tally of homeowner settlements, if that would speed up the process.” The City responded on January 23, 2024. Unsatisfied with the City’s response, Ms. Ferguson petitioned this office and this appeal, SPR24/0381, 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 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. SPR24/0381 Page 2 February 20, 2024 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 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). Current appeal In her appeal, Ms. Ferguson asserts, “[t]he city of New Bedford provided this fee estimate more than 10 business days after I initially filed my request.” The City’s January 23rd Fee Estimate In the City’s January 23, 2024 response, the City stated that, “[Ms. Ferguson’s] request, [was] received by the City on January 8, 2024.” The City provided a fee estimate of $175.00. The City stated as follows: “[a]fter conducting a search of its departmental database, taking a total of two hours, the Office has identified 35 case files in its possession posing to be responsive to your January 8th request. Prior to providing you with any responsive records, the Office will need to scan and segregate the associated records and then make any redactions/withholdings required by law. The Department anticipates that it may need to redact/withhold records pursuant to G.L. c. 4, § 7(26)(a). Under Exemption (a), it is anticipated that redactions/withholdings may have to be made according, but not limited, to the following statutes ... G.L. c. 93H, § 1 [and] ... Driver’s Privacy Protection Act, 18 U.S.C. § 2721.” The City further opined that “[t]he City has a population of more than 20,000 individuals. It is for this reason that the two hours of search time already taken by the Office will not be factored into this provided fee estimate. The lowest paid employee capable of performing the necessary work to respond to your request has an hourly rate that exceeds $25.00 per hour. Under the Massachusetts Public Records Law, the maximum hourly rate that can be charged for a fee estimate is $25.00 per hour. The Department is, therefore, seeking payment of (7 hours) ($25.00/hour) = $175.00.”

Nicholas Demarco, Esq. SPR24/0381 Page 3 February 20, 2024 Fees - Timeliness of response If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); -se-e -a-ls-o 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City is advised that under the Public Records Law, 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 in compliance with G. L. c. 66 §10(e) and 950 C.M.R. 32.06(2)(c). It is unclear if the City’s January 23rd response met the requirements under G. L. c. 66, § 10(b) to assess a fee for the requested records. Pursuant to the law, the written response must be made via first class or electronic mail and must: (i) confirm receipt of the request; (ii) identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves; (iii) identify the agency or municipality that may be in possession, custody or control of the public record sought, if known; (iv) identify any records, categories of records or portions of records that the agency or. municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based, provided that nothing in the written response shall limit an agency’s or municipality’s ability to redact or withhold information in accordance with state or federal law; (v) identify any public records, categories of records, or portions of records that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought; (vi) identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein; (vii) 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; (viii) include an itemized, good faith estimate of any fees that may be charged to produce the records; and (ix) include a statement informing the requestor of the right of appeal to the supervisor of records under subsection (a) of section 10A and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court under

Nicholas Demarco, Esq. SPR24/0381 Page 4 February 20, 2024 subsection (c) of section 10A. G. L. c. 66, § 10(b). The City is advised in order to assess a fee for the requested records, it must demonstrate it provided a response in compliance with G. L. c. 66, § 10(b). The City must clarify this. Conclusion Accordingly, the City is ordered to provide Ms. Ferguson with a response to her 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. Ms. Ferguson may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Grace Ferguson