Melissa Maciborski v. Northampton, City of - Mayor's Office (SPR 20242423)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 9, 2024 SPR24/2423 Alan Wolf Chief of Staff Mayor’s Office 210 Main Street, 2nd Floor Northampton, MA 01060 Dear Mr. Wolf: I have received the petition of Melissa Maciborski appealing the response of the City of Northampton (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 10, 2024, Ms. Maciborski requested “[a]ll emails and official correspondence between [two identified individuals] from July 1, 2023-January 30, 2024.” The City responded on August 20, 2024, providing a fee estimate. Unsatisfied with the City’s response, Ms. Maciborski petitioned this office and this appeal, SPR24/2423, 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 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. Att’y 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 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

Alan Wolf SPR24/2423 Page 2 September 9, 2024 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 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 City’s August 20th Fee Estimate In its August 20, 2024 fee estimate, the City indicated that it received Ms. Maciborski’s request on Monday, August 12, 2024, and further stated the following: As a municipality of more than 20,000 people, the law states that the first two hours of records segregating and redacting are free, but all hours after that may be charged $25 per hour. In the initial time required to program our systems to pull the potential pool of responsive records to your expansive request, the City of Northampton has identified 774 emails that now need to be further segregated and analyzed for possible required redaction according to one of 22 exceptions (a-v) under [the Public Records Law]. For this reason, I estimate a cost of $1078.75 to complete this request for you, assuming that electronic copies of responsive communications are acceptable via a shared Google directory. Additional fees exist if printing is required or a thumb drive is necessary. The price is determined as follows:

Alan Wolf SPR24/2423 Page 3 September 9, 2024  The number of emails is 774  It will take at least one minute per email to read the email and determine what might need redacting, which are nonresponsive, etc. This results in 774 initial minutes.  Some emails will require cursory redaction, and others will require significant redaction. The estimate is a minimum of 2.5 additional minutes per email for redaction, which results in 1935 minutes.  774 minutes + 1935 minutes is 2709 minutes.  2709 minutes/ 60 minutes is 45.15 hours.  The first two hours are free. 45.15-2= 43.15  43.15 hours * $25/hour is $1078.75 Please remit in advance your payment of $1078.75 to complete this public records request, or if you wish, please provide additional specific instructions for how we might narrow your request to more specifically target the information you seek in ways that may reduce the number of hours required. Current Appeal In her appeal petition, Ms. Maciborski contests the City’s August 20, 2024 fee estimate and notes that she submitted her request as “a member of the public, for the public interest (not commercial).” Ms. Maciborski further states that she has not yet paid the fee assessed by the City, and “would like to verify the City of Northampton is engaging in fair practices when assessing public records fees.” Although the City indicates in its fee estimate that that it is assessing a fee for “possible required redaction according to one of 22 exceptions (a-v) under [the Public Records Law][,]” it is unclear whether the redactions for which the City is charging are required by law. Please note that under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). I am not aware that the City has submitted a petition under G. L. c. 66, § 10(d)(iv). As such, I find the City must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. It is also unclear why the City requires “at least one minute per email to . . . determine what might need redacting” for a total of “774 initial minutes” in addition to “a minimum of 2.5

Alan Wolf SPR24/2423 Page 4 September 9, 2024 additional minutes per email for redaction, which results in 1935 minutes” to review the 774 responsive emails it identified in its fee estimate. The City must provide further explanation of how many pages of responsive records exist and how many minutes per page it will take to segregate and redact the responsive records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, although the City states that it is assessing a $25 per hour rate, it is unclear whether the $25 per hour rate is that of the lowest-paid employee capable of performing the tasks necessary to produce the requested records. The City must clarify this matter. For the reasons discussed above, I find the City must revise its fee estimate or provide further explanation of how the fee assessed in its August 20th estimate is consistent with G. L. c. 66, § 10(d). I encourage Ms. Maciborski and the City to communicate further in order to facilitate producing records efficiently and affordably. Ms. Maciborski may wish to narrow the parameters or include applicable factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The City must use its 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, the City is ordered to provide Ms. Maciborski with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: Melissa Maciborski