Grace Ferguson v. New Bedford, City of - Office of The City Solicitor (SPR 20242314)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 29, 2024 SPR24/2314 Romina Moniz Administrative Manager Central Records Access Officer City of New Bedford 133 William Street New Bedford, MA 02740 Dear Ms. Moniz: 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 July 30, 2024, Ms. Ferguson requested the following: [1] All public records requests submitted by [an identified individual][;] [2] All correspondence with [an identified individual] relating to his public records requests[;] [3] All records provided in response to [an identified individual’s] public records requests[.] The City provided a fee estimate on August 14, 2024. Unsatisfied with the response, Ms. Ferguson petitioned this office and this appeal, SPR24/2314 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 public record. G. L. c. 66, § 10(d)(i). 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 SPR24/2314 Page 2 August 29, 2024 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 how if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). The City’s August 14th Fee Estimate In its August 14, 2024 response, the City provided a fee estimate of $141.67 and stated, “...the City has identified twenty-four public records requests/responses matching the specifications provided in your July 31st request.” The City further stated, As the City of New Bedford has a population of more than 20,000 individuals, the City is seeking payment for 5 hours and 40 minutes of search and compile time to fulfill your request [(7 hours and 40 minutes) – (2 hours at no charge)]. 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 is $25.00 per hour. The City is therefore seeking payment of (5 hours and 40 minutes) ($25.00/hour) = $141.67. Current appeal In her appeal, Ms. Ferguson asserted, “… [t]his fee estimate is invalid because a response to this request was not provided within 10 business days, as required by the public records law. When a response is not provided within 10 business days, municipalities lose their right to charge a fee. See G. L. c. 66, § 10(b) and G. L. c. 66, § 10(e) ... I sent my request on 7/30, so the first business day would have been 7/31, which means today is the 11th business day. Your email today is the first written communication I have received from the city in response to this request. Therefore, in accordance with G. L. c. 66, § 10(e), the city may not charge a fee to produce the requested records.” G. L. c. 66 § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Ms. Ferguson submitted a public records request on July 30, 2024, and the City provided a response on August 14, 2024, I find it is unclear whether the City complied with G. L. c. 66, § 10(e). Specifically, the City must demonstrate whether it provided a response to Ms.

Romina Moniz SPR24/2314 Page 3 August 29, 2024 Ferguson’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. The City must clarify. Conclusion Accordingly, the City is ordered to provide Ms. Ferguson with a response to the request, 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: Grace Ferguson