Grace Ferguson v. Cambridge, City of - Office of the City Clerk (SPR 20242526)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 20, 2024 SPR24/2526 Seah Levy Public Records Access Officer City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Grace Ferguson, of the New Bedford Light, appealing the response of the City of Cambridge (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 31, 2024, Ms. Ferguson requested: [1] A calendar of the mayor’s travel outside of Massachusetts since June 1, 2023. [2] Records documenting expenses for the mayor’s travel outside of Massachusetts. Ms. Ferguson further advised to “...not interpret the above as a request for all records relating to the mayor’s travel expenses. I am seeking records that show the dollar amount, vendor, vendor location, and date for each expense.” The City responded on August 12, 2024, providing a fee estimate. Unsatisfied with the City’s response, Ms. Ferguson petitioned this office and this appeal, SPR24/2526, 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

Seah Levy SPR24/2526 Page 2 September 20, 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). Current appeal In her appeal, Ms. Ferguson states, “[i]t appears that the city has responsive records in its possession that it has not yet provided. Furthermore, though the city has stated its intention to charge a fee, it is unclear how much time the city would require to search for the records and whether it has considered other search methods that could yield records more efficiently. I have copied the city on this appeal, and I look forward to working with the records officer to complete this request.” The City August 12th Response In its August 12, 2024 response, the City provided an estimated cost for providing the responsive records in the amount of $50.00. In support of the fee estimate, the City stated, Hours Department Hourly Rate Total 4 Mayor’s Office $25 $100 (2) Less hours deducted pursuant to 950 CMR 32.07(m)(1). ($50) Total $50 The City explained, “[u]nder 950 CMR 32.06(2)(f) and 32.07, the City is entitled to assess fees for search and copying time expenses as defined in 950 CMR 32.02, based on the hourly rate of the lowest paid employee capable of performing the task or no more than twenty- five dollars ($25) per hour, and provide the requester with an estimate of fees to be incurred prior to providing the documents responsive to the public records request. The City is also entitled to assess charges for the actual cost of postage, and for copying costs at $0.05 per page. As a courtesy, the City will waive the per page cost of the first fifty pages of 8 1/2 by 11 inch or 8 1/2 by 14 inch paper.”

Seah Levy SPR24/2526 Page 3 September 20, 2024 Although the City has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 4 hours, it is unclear how the City requires this many hours to produce the responsive records. It is not clear from the City’s estimate how many hours are allocated to search, and how many hours are allocated for segregation or redaction of the records. The City must provide further details regarding the tasks involved and what each task entails. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The City must clarify. For the reasons discussed above, I find the City must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the City is ordered to provide Ms. Ferguson with a response to the request, provided 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. Ms. Ferguson may appeal the substantive nature of the City’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Grace Ferguson