Stephanie Ebbert v. Revere, City of - Office of the City Clerk (SPR 20241297)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 3, 2024 SPR24/1297 Ashley Melnik City Clerk Office of the City Clerk City of Revere 281 Broadway Revere, MA 02151 Dear Ms. Melnik: On April 29, 2024, this office received your petition on behalf of the City of Revere (City) requesting a waiver of statutory limits to 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 City furnished a copy of the petition to the requestor, Stephanie Ebbert, of the Boston Globe. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On April 24, 2024, Ms. Ebbert requested “[c]opies of incident reports (NFIRS-BASIC form if applicable) for all service calls to Address since January 1, 2023 to [an identified address] and [an identified address].” 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, § 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

Ashley Melnik SPR24/1297 Page 2 May 3, 2024 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). 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). Fee in Excess of $25.00 per Hour In its petition, the City is seeking approval “to increase the hourly rate allowed under the Public Records Law from $25 to $72.58.” The City provides the following in support of its request to charge fees in excess of $25.00 per hour: [C]aptain Wolfgang of the Revere Fire Department is the only individual capable and qualified to redact protected medical information from responsive incident reports relative to the request in the email chain below. …

Ashley Melnik SPR24/1297 Page 3 May 3, 2024 [T]here are 118 incident reports from those 2 addresses during that time frame. [I] will have to print each one individually, review each for protected health information, redact that information and scan each report…[A]s the keeper of records for the department, [I] am the lowest paid person qualified to do this. … [H]e will need to complete this work during overtime as there is no time available during [his] regular shift at the Fire Department. His overtime hourly rate is $72.58. Given that public officials have a duty to respond to public records requests, I find the City has not met its burden to explain how the request could not prudently be completed without assessing an overtime rate. In light of the above, it is unclear how the request could not be prudently completed without a fee in excess of $25.00 per hour. Consequently, the City has not met its burden to demonstrate why it must charge in excess of the statutory limit of $25.00 per hour in responding to the request made by Ms. Ebbert. Conclusion I find that the City has not 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). Further, this office encourages Ms. Ebbert and the City 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 City is advised to provide a detailed explanation to the requestor detailing why the amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The City must provide a response to Ms. Ebbert within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Sincerely, Manza Arthur Supervisor of Records cc: Stephanie Ebbert