Colman Herman v. New Bedford, City of - Office of The City Solicitor (SPR 20241877)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 15, 2024 SPR24/1877 Romina Moniz, Esq. Associate City Solicitor City of New Bedford 133 William Street New Bedford, MA 02740 Dear Attorney Moniz: I have received the petition of Colman Herman 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 August 30, 2023, Mr. Herman requested, “... copies of any and all communications related to UMass Dartmouth recently vacating a downtown New Bedford building that once was a department store.” On August 30, 2023, Mr. Herman clarified his request to include the time period January 1, 2023 to the present. Subsequently, Mr. Herman modified his request on August 31, 2023 to include three identified names. On February 3, 2024, Mr. Herman further modified his request to now include “. . . the following [identified eight (8) individuals] ... for the period January 1, 2023 to the present.” Prior Appeals The requested records were the subject of prior appeals. See SPR23/2603 Determination of the Supervisor of Records (November 10, 2023); SPR23/2867 Determination of the Supervisor of Records (December 13, 2023) and SPR24/0978 Determination of the Supervisor of Records (April 16, 2024). In my April 16th determination, I found it was unclear why the City requires 2 minutes to read, review, segregate, and or redact each email. The City responded on April 29, 2024. Unsatisfied with the City’s response, Mr. Herman petitioned this office, and this appeal, SPR24/1877, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or 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

Romina Moniz, Esq. SPR24/1877 Page 2 July 15, 2024 municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. 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). The City’s April 29th Fee Estimate In its April 29, 2024 response, the City argues the following “as to why it will take an average of (2) minutes per email to read, review, segregate and/or redact emails:” [I]t is the City’s experience that the substance of each email is unique with each presenting its own set of challenges. For example, some emails include multiple attachments while others do not. Additionally, some emails are part of a lengthy email chain, while others are short responses. The parties involved (ie: senders and receivers) also differ among emails. All of the emails and attachments must

Romina Moniz, Esq. SPR24/1877 Page 3 July 15, 2024 be reviewed for a host of exemptions and exclusions. Because it is the City’s experience that emails are not uniform and the substance of each is unique, manual review of these emails is necessitated. This experience is what formed the basis for the City’s good faith estimate of (2) minutes per email and represents the median review time. In its prior February 21, 2024 response, the City explained that it had “identified 444,618 potential emails that pose to be encapsulated in your request.” The City also noted that it “anticipates that it may need to redact/withholding [sic] records pursuant to G.L. c. 4, § 7(26)(a) as well as the common law principles of attorney-client and work-product.” The City also confirmed it would not charge for the first two hours of work, and that it would charge $25.00 per hour, which is lower than “[t]he lowest paid employee capable of performing the necessary work.” The City also provided the following equation for the amount of time required: (444,618 items) * (2 minutes/ item to read, review, segregate, redact and/or withhold) = 889,236 minutes (889,236 minutes) * (1 hour / 60 minutes) = 14,820.60 hours . . . (14,818.60 hours) ($25.00/hour) = $370,465.00 In light of the City’s February 21st and April 29th responses, I encourage Mr. Herman and the City to communicate directly in order to facilitate producing records more efficiently and affordably. Mr. Herman may consider further narrowing the scope of his request to enable the City to provide the records more efficiently and affordably. The City must use its superior 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, I will consider this administrative appeal closed. If issues remain after further communication, Mr. Herman may file an appeal. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman