Melissa Maciborski v. Northampton, City of - Mayor's Office (SPR 20242758)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 21, 2024 SPR24/2758 Alan Wolf Chief of Staff Mayor’s Office City of Northampton 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.” Previous Appeal This request was the subject of a previous appeal. See SPR24/2423 Determination of the Supervisor of Records (September 9, 2024). In my September 9th determination, I ordered the City to revise or provide further explanation concerning its fee estimate. Subsequently, the City responded on September 20, 2024. Unsatisfied with the City’s response, Ms. Maciborski petitioned this office and this appeal, SPR24/2758, 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 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 SPR24/2758 Page 2 October 21, 2024 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 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 September 20th Response In my September 9, 2024 determination, I ordered the City to revise or clarify its fee estimate. Specifically, I noted it was unclear whether the redactions for which the City is charging are required by law, and why the City required the amount of time indicated in its fee estimate to produce the requested records. I also found that the City must clarify whether the $25 per hour rate it assessed as part of its fee estimate is that of the lowest-paid employee capable of performing the tasks necessary to produce the requested records. In its September 20, 2024 response, a representative of the City reiterated its fee estimate of $1078.75 and provided further explanation concerning the following: 1. Redactions Required by Law 2. Explanation of Time Estimate for Email Review 3. Clarification of the $25 Per Hour Rate . . .

Alan Wolf SPR24/2758 Page 3 October 21, 2024 Redactions Required by Law The Supervisor has directed the City to clarify the legal basis for redactions in advance of our full review. The challenge here is that the need for redactions can only be identified through the careful reading of each potentially responsive document. The law requires us to give an estimate. I stated in my estimate that this process is time-consuming, as it requires us to determine whether each document contains information that may fall under any of the 22 statutory exemptions. For example, Ms. Maciborski’s previous requests have involved sensitive information, such as content related to Northampton Public Schools, where privacy considerations are paramount. The responsibility to protect information about minors and private family matters compels us to exercise caution. It is difficult to predict which exemptions will apply in advance without a full review of the documents. As I have stated, each exemption is considered as part of our review process to ensure that privacy rights and transparency obligations are equally balanced. While we often rely on exemptions related to privacy and personnel matters, the nature of each request determines the relevant exemptions. It would be premature to specify particular exemptions before the documents have been fully reviewed. Time Estimate for Email Review The estimate of one minute per email is based on practical experience. Emails vary significantly in length and often contain multiple threads and attachments, requiring careful evaluation. In some instances, emails are part of long chains that must be reviewed individually for both content and potential redactions. Failing to do so thoroughly could result in releasing sensitive or non-responsive information. As for redactions, the additional 2.5 minutes per email accounts for opening redaction software, applying the necessary redactions, saving the file, and conducting a final check to ensure redactions were properly applied. This process is essential to safeguarding the interests of all parties. While some documents may require minimal redaction, others necessitate more intensive work. The only prudent course is to estimate based on the assumption that each document may require some form of redaction, and we will refund any unused portion of the fee should the actual time spent be less. Clarification of the $25 Per Hour Rate The $25 per hour rate used in this estimate reflects the rate of the lowest-paid employee capable of performing the necessary tasks, in accordance with G. L. c. 66, § 10(d)(iii). . . .

Alan Wolf SPR24/2758 Page 4 October 21, 2024 Current Appeal In her appeal petition, Ms. Maciborski states that the City’s September 20th response “is not in compliance with decision SPR24/2423.” Specifically, Ms. Maciborski notes that the City has “not indicated how many full pages are present in this records request[.]” and that “the formula [the City] used for charging was the same excessive rate petitioned in this appeal. Although the City has provided information on the $25 hourly rate, it remains unclear whether the redactions for which the City is charging are required by law. The City is reminded 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). Accordingly, the City must provide further explanation as to whether the redactions described in its fee estimate are required by law. Further, where the City reiterates the portion of its previous response in which it advised that it required one minute per email for review in addition to 2.5 minutes per email for redactions, I find that it remains unclear how many minutes per page the City requires to review the responsive records. The City must clarify whether an initial minute for review and additional 2.5 minutes for redactions is required per page or per record. If the City is assessing an initial minute for review and additional 2.5 minutes for redactions per page, I find it is not clear how the City requires this amount of time to review each page of the responsive records. If it is per record, I find the City must clarify how many pages there are per record. In light of the above, I find the City must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). This office continues to encourage Ms. Maciborski and the City to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii) (a 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 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.

Alan Wolf SPR24/2758 Page 5 October 21, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Melissa Maciborski