Grace Ferguson v. New Bedford, City of - Office of The City Solicitor (SPR 20242691)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 9, 2024 SPR24/2691 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.” Prior Appeal The requested records were the subject of a prior appeal. See SPR23/2438 Determination of the Supervisor of Records (September 11, 2024). In my September 11th determination, I found it unclear whether the City complied with G. L. c. 66, § 10(e) and requested that the City 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 responded on September 24, 2024. Unsatisfied with the City’s response, Ms. Ferguson petitioned this office and this appeal, SPR24/2691, was opened as a result. 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 SPR24/2691 Page 2 October 9, 2024 Fees Estimates - 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). 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 September 24th Fee Estimate In the City’s September 24, 2024 response, the City stated, 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 4:10 p.m., on Friday, August 9, 2024. As such, your request was not received by the City until normal business hours on Monday, August 12, 2024. The City indicated this fact in its email correspondence to you on August 26, 2024. Therefore, the City’s response conforms with G.L. c. 66, §§ 10(b);(e) because it was sent to you on August 26, 2024, the tenth business day after (or “following”) the initial receipt of your request (August 12, 2024). Put differently, the City responded within ten business days from receipt of your request. 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

Romina Moniz SPR24/2691 Page 3 October 9, 2024 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, the City has not demonstrated that the fee estimate was submitted in a timely manner. In support of determing a timely manner, see The Berkshire Gas Company v. Board of Assessors of Williamstown, 361 Mass. 873 (1972) which describes the times as of midnight. General Laws c. 59, s 64 (as amended through St.1965, c. 597 s 2) permits an appeal to the county commissioners by a taxpayer ‘within three months after receiving the notice provided in’ s 63, ‘or within three months after the time when the application for abatement is deemed to be denied,’ viz. upon ‘the expiration of three months from the date of filing of such application’ for abatement. Section 65 (as amended through St.1945, c. 621, s 6) provides for an appeal to the board within the same periods specified, and ‘subject to the same conditions provided for an appeal under’ s 64. Three months means three calendar months ... measured from (but excluding) the date of receipt of the notice. The three calendar months began at midnight following October 6, 1970, the date of receipt of the notice, and expired at midnight before January 7, 1971, three complete calendar months. 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 Katherine Schuko, Esq.