Joan P. Beckta v. Everett, City of - Office of the City Clerk (SPR 20243140)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 27, 2024 SPR24/3140 Colleen Mejia, Esq. City Solicitor City of Everett 484 Broadway, Room 10 Everett, MA 02149 Dear Attorney Mejia: On November 20, 2024, this office received the petition Attorney Janelle M. Austin, of KP Law, P.C., on behalf of the City of Everett (City) seeking an extension of time to produce records, a waiver of statutory limits on fees that may be assessed in responding to the request, and relief from the obligation to produce responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). From the period of November 4, 2024 to November 18, 2024, Joan P. Beckta sought the following: [1.] The total number of classrooms in the Devens – the ten million dollar boondoggle – school [2.] The report on the capacity of the Devens School, that is, a report on how many students it can hold, as opposed to the 40 who now use it [3.] The Insurance policy or policies covering all Everett Fire Department Vehicles [4.] A report on the Revenue Loss account for 7/1/2024 to 10/31/2024, believed to be G/L account #23-510-1560-5002 [5.] The rules of the Zoning Board of Appeals as are required by G.L. 40a. Section 12. In emails to this office dated November 22 and November 25, 2024, Ms. Beckta objected to the petition. Subsequent to the opening of this petition, on November 27, 2024, the City provided additional information regarding its petition. 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

Colleen Mejia, Esq. SPR24/3140 Page 2 November 27, 2024 Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Request for Additional Time to Produce Responsive Records In its petition, the City states, “the City respectfully requests an extension of time for an additional 30 business days to respond to these requests and any future requests…” On November 27, 2024, the City provided additional information to this office and stated the following: The City has fully documented the history of requests from this Requestor in full in its Petition. In her most recent five requests, the Requestor is seeking records from three different departments. These departments are receiving multiple requests over a short period of time. While these most recent requests only require five hours in which to respond, this is in addition to a multitude of previous request, as outlined by the City in its Petition. The work necessitated by these requests will have to be added to staff’s other responsibilities, which includes

Colleen Mejia, Esq. SPR24/3140 Page 3 November 27, 2024 other municipal business and responding to other public records requests on behalf of the City. If City personnel were required to respond to all of the Requestor’s requests within the ten business days allotted under the statute, the work of these Departments is and would continue to be unduly burdened. The City submits that the persistent requests and responses required from this requestor to ensure compliance with the Public Records Law are an unreasonable burden to place on the City for the benefit of one individual to the detriment of the public and other City responsibilities. I find that in light of the need to search for, collect, segregate and examine the records, the capacity of the City to produce the requests without an extension, and efforts undertaken by the City in fulfilling the current requests, the City has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The City is granted an extension of 30 business days. Petition to Assess Fees – Municipalities The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that these requests were not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. 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

Colleen Mejia, Esq. SPR24/3140 Page 4 November 27, 2024 ($.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 2 (two) 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 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). Request for Fee in Excess of $25.00 per Hour In its petition, the City is seeking a waiver of statutory limits on fees and states the following, “the City respectfully requests… a waiver on the statutory limits on fees to charge the RAO’s hourly rate of $88.20 that may be assessed on any records requests submitted by the Requestor, pending or in the future, as opposed to the $25/hour.” On November 27, 2024, the City stated the following: The Requestor’s numerous, overlapping and contemporaneous requests must be coordinated by the Records Access Officer (“RAO”). The amount set forth in the City’s Petition is reasonable insofar as represents the City’s actual cost to respond to a small portion of the request and is not designed to limit, deter, or otherwise prevent access to any non-exempt records. Therefore, the City respectfully requests that the statutory cap on fees be waived as to the time estimated for the RAO to locate responsive records and make redactions required by law and that the City be authorized to assess fees for this work at its actual costs of $88.20/hour, as detailed in its initial response and fee estimate. Based on the City’s petition, I find the City has not met its burden to explain how the requests could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Request for Relief In its petition, the City seeks “to petition for relief from numerous duplicative and harassing public records propounded by Ms. Joan Beckta…” and states that “[Ms. Beckta’s] persistent and repeated requests are part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass the City and its public officials.”

Colleen Mejia, Esq. SPR24/3140 Page 5 November 27, 2024 In support of its request for relief, the City argues the following: Specifically, as outlined in detail below, the City has already previously responded to more than 194 requests by the Requestor this past year, and a total of 725 since January, 2022. Since June 2024 alone, the City has received more than 115 public records requests from this Requestor. The City has responded to all prior requests in good faith in compliance with the provisions of the Public Records Law. Despite its good faith efforts, the Requestor nevertheless continues to submit multiple new requests frequently, straining City staff with limited resources, and sending argumentative emails that are detrimental to the City’s municipal work, operations and efforts. For example, in a one-week period from July 2-July 10, 2024, Ms. Beckta sent 53 e-mails to several City employees… More recently, she sent 19 emails in one week, from October 1 to November 4, copying multiple City officials, including the Mayor and City Solicitor… Based on the timing, number, and nature of the requests, in conjunction with the Requestor’s escalating correspondence, it is clear that the requests are designed solely to intimidate public officials and not intended to disseminate information to the public about actual governmental activity. As such, while the City has complied with the provisions of the Public Records Law and responded to hundreds of requests in recent years straining its limited public resources, it is in the public interest to relieve the City of its obligation to respond to these most recent requests, as well as any future requests. … Notwithstanding the tone and sheer volume of the requests, the City has responded to previous requests in good faith, provides records where they exist, informs the Requestor where no records exist or prepares a good faith estimate in compliance with the provisions of the Public Records Law. Yet the City’s efforts are only met by more and more requests, and correspondence or petitions arguing that the City’s responses are unlawful or inadequate… At this juncture, it is the City’s position that the Requestor is being unreasonable, creating an adversarial setting and abusing the Public Records Law and the Public Records Access Regulations to the clear detriment of the City—straining its operations and resources. Therefore the City should be excused from any obligation to respond to the current requests and any future requests. … [I]t is estimated that the Requestor has sent more than 194 requests this past year alone, and more than 725 requests since January, 2022, garnering 46 petitions to the Supervisor. Half of those petitions were submitted this year, demonstrating the Requestor’s escalating campaign. Often, the Requestor sends multiple requests a day over a short time span, taxing the City’s ability to respond based on its limited staff and public resources, while managing its other municipal responsibilities… Nonetheless, the City has diligently responded in good faith to each and every request, without complaint, for several years. Despite the City’s good faith efforts to work with the Requestor, when she does not receive a response that she agrees

Colleen Mejia, Esq. SPR24/3140 Page 6 November 27, 2024 with, she escalates her requests through aggressive and argumentative e-mails to the City Solicitor, cc-ing multiple City employees and representatives… From January 1, 2022 to July 10, 2024, the Requestor has sent over two thousand e- mails to various City employees. In doing so, the Requestor continues to waste the City’s limited time and scarce public resources. The attached examples do not include the many requests and additional harassing e-mails the Requestor has sent to City officials this year and in numerous years prior. The City can certainly make those additional records available to the Supervisor upon request. It is evident that these requests and associated e-mails are not for the broad dissemination of information to the public but rather to satisfy the Requestor’s own positions against municipal employees or City policies/decisions with which she disagrees. For example, in the most recent series of requests, the Requestor seeks City Council minutes with the commentary: “I realize the mayor trying to shove an unqualified Elections head down our throats has slowed the POSTING of the minutes but that should not have prevented their PREPARATION… or did you think I would give a hall pass until after the election?”… Similarly, another request includes commentary: “Hopefully that doc includes whether It was a one- shot deal to attend a conference or if someone below the rank of Deputy Chief drives home to NH every night in a vehicle the taxpayers pay for.” In another request, the Requestor seeks “any announcement from the Finance or the Mayor that the city was going from a real budget to a ‘fool-you’ budget.” This commentary evidences the Requestor taking advantage of the Public Records Law to the City’s detriment. And even where these requests cannot possibly enable a search for responsive records, the City must still expend time and resources to review them and respond in good-faith. Based on the information provided in the City’s petition, I find that the City has not demonstrated that the requests are frivolous and not intended for the broad dissemination of information to the public about actual or alleged government activity, as required by G. L. c. 66, § 10(c). Conclusion Accordingly, I find the City has established good cause for a time extension of 30 business days. However, I find that that the City has not met its burden to explain how, given the nature of the responsive records, the requests could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Additionally, I am unable to grant relief from the obligation to produce responsive records. Further, this office encourages Ms. Beckta and the City to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality or agency 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 or agency to produce records sought more efficiently and affordably).

Colleen Mejia, Esq. SPR24/3140 Page 7 November 27, 2024 When preparing a fee estimate for the provision of the requested records, the City is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary and how the redactions are required by law. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The City must provide a response to Ms. Beckta within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Beckta may appeal the City’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Joan P. Beckta