Steve Blomerth v. Beverly Regional Airport (SPR 20242968)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 14, 2024 SPR24/2968 Beth A. Oldmixon Assistant City Solicitor Beverly Regional Airport 50 LP Henderson Road Beverly, MA 01915 Dear Ms. Oldmixon: I have received the petition of Steve Blomerth appealing the response of the Beverly Regional Airport (Airport) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 30, 2024, Mr. Blomerth requested the following: [1.] [A]ccess to all e-mail messages that were sent by or received by the following Individuals . . . between the dates of January 1, 2024 to September 1, 2024, and specifically messages that contain any of the following words – Jet Storage Facility, Flight Level Aviation Hanger, Funding for Expansion (FFA), Environmental Impact Reports, Beverly Airport Master expansion plan. Including but not limited to: “ENF, EIS, DEIR or EIR.” Relate to entire airport facility including abutters. [2.] [A]ccess to all e-mail messages that were sent by or received by the following Individuals … between the dates of January 1, 2024 to September 1, 2024, and specifically messages that contain any of the following words – Hangers, FLA Land property Lease 1, FLA Land property lease 2, Hanger proposal, Jet Storage Facility, Jet Port expansion, Flight Level Aviation Hanger, Engineering Consultant Lawrence, Master Plan Improvements, Funding for Expansion, environmental process, Environmental Impact Reports[.] [3.] [A]ccess to all e-mail messages that were sent by or received by the following individuals regarding the request of the named petitioner . . ., on the enclosed email. On behalf of the Danvers neighbors of the Beverly airport, I am requesting any project numbers, record numbers or reference numbers for any and all environmental reviews associated with the Beverly Airport Master expansion plan. 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

Beth A. Oldmixon SPR24/2968 Page 2 November 14, 2024 The Airport provided a response on October 11, 2024, which included a fee estimate. Unsatisfied with the response, and objecting to the fees, Mr. Blomerth petitioned this office and this appeal, SPR24/2968, 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. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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. Fees - 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 how if such rate is approved by the Supervisor of Records 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 of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4).

Beth A. Oldmixon SPR24/2968 Page 3 November 14, 2024 Current Appeal In his appeal petition, Mr. Blomerth states, “[o]ur community group as abutters to Beverly Regional Airport have been informed that there will be a $500.00 fee to access the information we have requested. We believe that this fee provides a severe roadblock to gaining the information which should be covered by the FOIA.” The Airport’s October 11th response In its October 11, 2024 response, the Airport provided a fee estimate of $500 and stated the following: The search resulted in over 275 individual emails matching the criteria, many with attachments. A cursory review of the emails reveals an unknown number may contain information exempt from disclosure as required by law… Specifically, the emails may contain attorney-client privilege communication exempt from disclosure as required by law… Moreover, the emails may contain information exempt from the definition of “public record.” Though not an exhaustive list, the emails may contain information “specifically or by necessary implication exempted from disclosure by statute” (M.G.L c. 4, § 7(26)(a)) and “personnel or medical files or information…relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy” (M.G.L. c. 4, § 7(26)(c)). … Presently, [the Airport] does not have an employee with such necessary skill who is paid less than $25.00 per hour. Consistent with the Public Records Law, the first two (2) hours of personnel work are free of charge; thereafter an hourly rate of $25.00 will be charged. With respect to the approximately 275 records identified as potentially responsive, [the Airport] estimates 11 hours of personnel time will be required to compile and assemble the records and 11 hours of personnel time will be required to segregate, redact as required by law, and reproduce the records for production. The number of hours has been calculated by estimating an average compilation and assembly rate of 25 documents per hour (275 records/ 25 records assembled per hour = 11 hours) and average segregation and redaction rate of 25 documents per hour (275 records/25 records reviewed per hour = 11 hours). The 11 hours attributed to segregating and redacting records is required by law as explained above. KBVY calculated the total estimated fee for reviewing, redacting, and electronically producing records in response to the request and determined the following: (22hrs.-2hrs.)x$25 = $500.00.

Beth A. Oldmixon SPR24/2968 Page 4 November 14, 2024 Although the Airport has estimated that the process to compile the responsive records for production will take 11 hours of employee time at 25 documents per hour, it is unclear why it would take the Airport this amount of time to compile the responsive records at this rate. As such, the Airport must provide additional information regarding the tasks involved in compiling the records for production. Also, the Airport has estimated that it would require another 11 hours to segregate and redact the records at a rate of 25 records per hour. However, it is unclear the number of pages there are or how many minutes per page it is requiring to segregate or redact the responsive records. Accordingly, the Airport must clarify. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, although the Airport claims that it is assessing a fee for redactions under Exemptions (a), (c), and the attorney-client privilege, it is unclear how the Airport can assess a fee for redactions under Exemption (c) in this matter. 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). I am not aware that the Airport has submitted a petition under G. L. c. 66, § 10(d)(iv). As such, although the Airport may assess a fee for redactions required by law as in Exemption (a) and the attorney-client privilege, it is uncertain whether the fees include time to redact records under Exemption (c). The Airport must clarify this. Additionally, where the Airport states that some redactions are required by law, I find the Airport must state the applicable statutes. Pursuant to 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). The Airport must clarify. I encourage Mr. Blomerth and the Airport to communicate in order to facilitate producing records efficiently and affordably. Mr. Blomerth may wish to narrow the parameters to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Airport must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Airport is ordered to provide Mr. Blomerth with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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.

Beth A. Oldmixon SPR24/2968 Page 5 November 14, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Steve Blomerth