Grace Ferguson v. New Bedford, City of - Office of The City Solicitor (SPR 20242581)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 27, 2024 SPR24/2581 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[.] Prior Appeal The requested records were the subject of a prior appeal. See SPR23/2314 Determination of the Supervisor of Records (August 29, 2024). In my August 29th determination, I found that the City must demonstrate whether it provided a response to Ms. Ferguson’s request under G. L. c. 66, § 10(e) within 10 business days of receipt of the request. The City provided a response on September 11, 2024. Unsatisfied with the response, Ms. Ferguson petitioned this office and this appeal, SPR24/2581, 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 SPR24/2581 Page 2 September 27, 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 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 September 11th Response In its September 11, 2024, and in response to whether the fee estimate was provided timely, the City asserted, The City’s normal business hours of operation are 8:00 a.m. to 4:00 p.m., Mondays through Fridays. You submitted your public records request after business hours, at 4:07 p.m., on July 30, 2024. Therefore, your request was not received by the City until normal business hours on July 31, 2024. The City indicated this fact in its email correspondence to you on August 14, 2024, and August 15, 2024, respectively. Therefore, the City’s response conforms with G.L. c. 66, §§ 10(b);(e) because it was sent to you on Wednesday, August 14, 2024, the tenth business day after (or “following”) the initial receipt of your request (July 31, 2024). Current appeal In her appeal, Ms. Ferguson asserted, “[t]he city still has not demonstrated that it complied with G. L. c. 66, § 10(e). I submitted my request at 4:07 p.m. on July 30, 2024. The city first responded to the request on August 14, 2024. The city does not assert that it provided any response prior to August 14.” 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).”

Romina Moniz SPR24/2581 Page 3 September 27, 2024 Upon review, I find that Ms. Ferguson submitted her request on July 30, 2024, and the City responded on August 14, 2024, more than ten business days after receipt of the request. The request was sent on July 30th and the 10 business days began accruing July 31st as day one, requiring the response for a fee estimate to be issued on August 13, 2024. Consequently, it is my determination that the City has not met its burden to show that the City complied with the provisions of G. L. c. 66, § 10(e). Therefore, the City may not assess a fee for this public records request. Conclusion Accordingly, the City is ordered to provide Ms. Fergusson 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: Grace Ferguson Katherine Schuko, Esq.