Grace Ferguson v. New Bedford, City of - Office of The City Solicitor (SPR 20242438)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 11, 2024 SPR24/2438 Romina Moniz Administrative Manager Central Records Access Officer City of New Bedford Solicitors Office 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 1, 2024, Ms. Ferguson requested, “...records documenting all travel expenses incurred by [an identified individual] since June 1, 2023.” On July 22, 2024, Ms. Ferguson modified her request for “...records of travel outside of Massachusetts, and please exclude emails from your search.” On July 22, 2024, Ms. Ferguson clarified her request and stated, “...my request is Not for ‘all records relating to the mayor’s travel expenses’. Rather, my request asked for ‘records documenting all travel expenses’ for the mayor, which doesn’t necessitate the production of every single record that may relate to those expenses.” On August 9, 2024, Ms. Ferguson further modified her request and requested “... only receipts for the mayor’s travel outside of Massachusetts since June 1, 2023.” The City responded to the August 9th modified request on August 26, 2024. Unsatisfied with the City’s response, Ms. Ferguson petitioned this office and this appeal, SPR24/2438, 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. 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 SPR24/2438 Page 2 September 11, 2024 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). Current appeal In her appeal, Ms. Ferguson asserts, “[t]he city may not charge a fee because it has taken more than 10 business days to respond to my modification.” The City’s August 26th Fee Estimate In the City’s August 26, 2024 response, the City provided a fee estimate of $70.00. In support of the fee estimate, the City stated as follows: ... the City has identified 84 pages of records potentially responsive to the specifications given in your August 12th modification. Before providing you with the records, the City will need to segregate each page and make redactions and withholdings as required by law. The City anticipates making redactions pursuant to G.L.c. 4, § 7(26)(a) according, but not limited, to G.L.c. 93H, § 1 and federal guidelines. The City anticipates that it will take approximately 2 minutes to segregate each page (or “item”) and redact financial information/data in accordance with the above cited authority. This time estimate is based on the City’s experience with similar records requests and a precursory review of the potentially responsive records. The following equation summarizes the calculated time, in hours, needed to complete your request: (2) hours of search time + [(84 items) (2 minutes/item to segregate, redact/ withhold) = 168 minutes; (168 minutes) (1 hour / 60 minutes)] = 2.8 hours to segregate, redact/withhold = 4.8 hours. (2.8 hours) ($25.00/hour) = $70.00.

Romina Moniz SPR24/2438 Page 3 September 11, 2024 The City further stated, “[t]he 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 for a fee estimate is $25.00 per hour.” 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 modified request on August 9, 2024, and the City provided a response on August 26, 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. Ferguson’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. The City must clarify this. Conclusion Accordingly, the City is ordered to provide Ms. Ferguson with a response to her request, in a manner consistent with this order, the Public Records Law, and its Regulations within ten (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