Brian McCarter v. Boston Public Health Commission (SPR 20240458)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 27, 2024 SPR24/0458 Whitney Pasternack, Esq. Assistant General Counsel Boston Public Health Commission 1010 Massachusetts Avenue, 6th Floor Boston, MA 02118 Dear Attorney Pasternack: I have received the petition of Brian McCarter appealing the response of the Boston Public Health Commission (Commission) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On November 1, 2023, Mr. McCarter requested: all emails, letters, applications or records of any communication, meeting notes/minutes/summaries, call logs, related to any new or existing shelters, since July 1 2023. This would include, but not limited to, Rosie’s Place, Victory Program, Miracle Mile Ministries (or associated churches), a shelter with an unknown name on Washington St, the Engagement center, Ahope needle exchange, 727 mass ave, and any of the ‘low threshold’ sites planned or already created. This list is not meant to be exhaustive. The Commission provided a response on November 17, 2023, providing a fee estimate. Unsatisfied with the response, Mr. McCarter petitioned this office and this appeal, SPR24/0458, was opened as a result. Fee Estimates An agency 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). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). 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

Whitney Pasternack, Esq. SPR24/0458 Page 2 February 27, 2024 Where appropriate, agencies 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. 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 Commission’s November 17th Fee Estimate In its November 17, 2023 response, the Commission provided a fee estimate of $56,436.30, and stated, “[a] preliminary search for records matching your request returned 218,726 emails to review.” The Commission broke down its fee estimate as follows: 2 hours to search email accounts/production Waived per 950 CMR time @$25/hour 1820 hours to segregate and redact emails $45,500.00 pursuant to M.G.L c.4 {7(26) and other privacy laws in accordance with 950 CMR 32.07(2)(m)(4) @ $25/hour. Black and white copies of approximately $10,936.30 218,726 e-mails @ $0.05 Total $56,436.30 Although the Commission has estimated that it will take 1820 hours to segregate and redact the records, it is unclear how the Commission requires this many hours to produce responsive records. As such, the Commission must provide additional information regarding the tasks involved in segregating and redacting these records, and why it requires 1820 hours for these tasks. Additionally, the Commission’s fee estimate lacks confirmation that the rate of $25 per hour is of the lowest paid employee who is capable of performing the task(s). Further, I find the Commission must clarify if the redactions are required by law, and state the applicable statutes, if any. Pursuant to the Public Records Law, a fee may 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 Commission must clarify this. Also, the Committee must clarify if the first free 4 hours to search for, compile, segregate, redact or reproduce records have been included in the estimate. Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). For the reasons discussed above, I find the Commission must revise its fee estimate or provide further explanation of how the fee assessed in its November 17th estimate is consistent

Whitney Pasternack, Esq. SPR24/0458 Page 3 February 27, 2024 with G. L. c. 66, § 10(d). I encourage Mr. McCarter and the Commission to communicate further in order to facilitate producing records efficiently and affordably. Mr. McCarter may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Commission 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). Conclusion Accordingly, the Commission is ordered to provide Mr. McCarter with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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: Brian McCarter