Grace Ferguson v. New Bedford, City of - Office of The City Solicitor (SPR 20240693)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 20, 2024 SPR24/0693 Peter Winters, Esq. Associate City Solicitor City of New Bedford 133 William Street New Bedford, MA 02740 Dear Attorney Winters: 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 from the Public Information Officer: [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.” Subsequently, Ms. Ferguson submitted the same request to the City Solicitor’s office on January 8, 2024. Prior Appeals The requested records were the subject of prior appeals. See SPR24/0381 Determination of the Supervisor of Records (February 20, 2024). In my February 20th determination, I found that the City mut clarify if it provided a response in compliance with G. L. c. 66, § 10(b). The City responded on March 5, 2024. Unsatisfied with the City’s response, Ms. Ferguson petitioned this office and this appeal, SPR24/0693, was opened as a result. 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

Peter Winters, Esq. SPR24/0693 Page 2 March 20, 2024 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 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 March 5th Fee Estimate Response In its March 5, 2024 response, the City stated, “[a] response was provided to you on January 23, 2024 acknowledging receipt and accompanied by a reasonable and detailed fee request. The response was within ten days as required by the Public Records Law. The January 8th request was ... the result of a narrowing of the scope pursuant to your email communications with the City on December 11, 2023. The fee was the result of this earlier discussion. Furthermore, you discussed narrowing the scope again on January 26, 2024 at which time it was confirmed that there could be no further narrowing.” 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

Peter Winters, Esq. SPR24/0693 Page 3 March 20, 2024 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.” Upon review, I find that the City’s January 23rd fee estimate response was not timely based upon Ms. Ferguson’s modified request on December 11, 2023. 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