Colin J. Hogan v. New Bedford, City of - Office of The City Solicitor (SPR 20242058)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 1, 2024 SPR24/2058 Katherine E. Schuko, Esq. Associate City Solicitor City of New Bedford 133 William Street New Bedford, MA 02740 Dear Attorney Schuko: I have received the petition of Colin Hogan, 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 May 15, 2024, Mr. Hogan requested, “... documents relating to internal investigations of staff at Roosevelt Middle School from June 1, 2023 through present.” Prior Petition and Appeal The requested records were the subject of a prior petition. See SPR24/1631 Determination of the Supervisor of Records (June 6, 2024). In my June 6th determination, I found that the City may assess a fee for the segregation and redaction of responsive records. See also SPR24/1748 Determination of the Supervisor of Records (June 25, 2024). In my June 25th determination, I learned that the City provided a supplemental response on June 11, 2024. Unsatisfied with the City’s response, Mr. Hogan petitioned this office and this appeal, SPR24/2058, was opened as a result. 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 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 E. Schuko, Esq. SPR24/2058 Page 2 August 1, 2024 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). The Department’s May 30th and June 11th Fee Estimates In its May 30, 2024 response the City stated, “[t]he City maintains the requested records are exempt. In accordance with the Supervisor’s Determination regarding Fee Petition #SPR24/163, and for the reasons set forth in the City’s response to you on 5/30/24, the City reserves it’s right to seek payment of: (12.00 hours) ($25.00/hour) = $300.00.” In its June 11, 2024 response, the City reiterated that the “... City reserves its right to seek payment of: (12.00 hours) ($25.00/hour) = $300.00.” The City further advised in its May 30th response, “[t]he City has identified 421 pages of potentially responsive documents matching the specifications given in your May 15th request.” The City stated as follows: (421 pages) (2 minutes/item to read, review, segregate, redact and/or withhold) = 842 minutes (842 minutes) (1 hour / 60 minutes) = 14.00 hours As outlined by the Massachusetts Public Records Law, municipalities may not assess a fee for the first two hours of personnel time taken to search for, compile, redact, or reproduce the record(s) requested unless said municipality is comprised of 20,000 people or less. The City of New Bedford has a population of more than 20,000 individuals. 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 for 12.00 hours [(14.00 hours) – (2 hours at no charge)]. In the event the City is later ordered to provide the requested records, the City hereby reserves its right to redact the requested records and to charge a reasonable fee to compile, segregate and redact said records. Specifically, based on a

Katherine E. Schuko, Esq. SPR24/2058 Page 3 August 1, 2024 precursory search, the City anticipates making redactions under G.L. c. 93H, § 1 in accordance with G.L. c. 4, § 7(26)(a), and under G.L. c. 4, § 7(26) (c);(o). Although the City has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 12 hours of employee time, it is unclear how the City requires this amount of time to produce responsive records. Particularly, it is not clear why the City requires 2 minutes per page to segregate or redact the records. Further, the City states, “... 2 minutes/item to read, review, segregate, redact and/or withhold[.]” Based on the City’s response, it is uncertain how it can assess a fee for time to “read” under G. L. c. 66, § 10(d)(iii). The City must clarify how this task constitutes time to search for, compile, segregate, redact, or reproduce records. As such, the City must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). For the reasons discussed above, I find the City must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the City is ordered to provide Mr. Hogan 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: Colin Hogan