Colin J. Hogan v. New Bedford, City of - Office of The City Solicitor (SPR 20241631)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 6, 2024 SPR24/1631 Katherine Schuko, Esq. Assistant City Solicitor City of New Bedford 133 William Street, Room 203 New Bedford, MA 02740-6163 Dear Attorney Schuko: On May 31, 2024, this office received your petition on behalf of the City of New Bedford (City) seeking 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 Department furnished a copy of the petition to the requestor, Colin J. Hogan, of The New Bedford Light. G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). On May 15, 2024, Mr. Hogan requested, “documents relating to internal investigations of staff at Roosevelt Middle School from June 1, 2023 through present.” Petition to Assess Fees – Municipalities The Supervisor of Records (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. 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 determination that this request was not made for a 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

Katherine Schuko, Esq. SPR24/1631 Page 2 June 6, 2024 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Petition to Assess Fees In its petition, the City requests permission to charge for segregation and redaction in excess of $25 per hour, and provides the following information in support of its petition: The City finds the requested records are exempt under Massachusetts General Laws Chapter 4 § 7(26)(c) as “personnel information” pursuant to the Supreme Judicial Court’s decision in Wakefield Teachers Association v. School Committee, 431 Mass. 792, 731 N.E.2d 63 (2000) . . . The City anticipates that it will take approximately (2) minutes to read/review/ segregate each document (or “item”) and redact or withhold pursuant to Mass. Gen. Laws ch. 4 § 7(26)(a);(o);(c)’s privacy exemption. In light of the City’s petition, I find the City has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction

Katherine Schuko, Esq. SPR24/1631 Page 3 June 6, 2024 or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the City may assess a fee for the segregation and redaction of such exempt material. Fees in Excess of $25.00 per Hour In its petition, the City states the following in support of its request to charge in excess of $25.00 per hour: The lowest paid school department employee capable of performing the work necessary and authorized to review this confidential data is paid an hourly rate of $64.7934 per hour, which exceeds the $25.00 per hour maximum. Therefore, the City respectfully requests to charge an hourly rate above the state maximum. Based on the information provided in the City’s petition, I find the City has not met its burden to explain how 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). Conclusion Accordingly, to the extent the responsive records contain the exempt information as described above, the City may assess a fee for segregation and redaction. However, I find the City has not met its burden to explain how the request could not prudently be completed without assessing a fee in excess of $25.00. See G. L. c. 66, § 10(d)(iv). This office encourages Mr. Hogan and the City to continue to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification to 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). Any subsequent fee estimate from the City must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Mr. Hogan 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: Colin J. Hogan