Paula Sterite v. Everett, City of - Office of the City Clerk (SPR 20243149)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 27, 2024 SPR24/3149 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 of 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 requests, 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, I understand that the City furnished a copy of this petition to the requestor, Paula Sterite. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). From November 5, 2024 to November 19, 2024, Ms. Sterite sought the following: [1] [T]he list of calls received to 311 during fri, sat and Sunday from July 1, 2024 to Nov 1, 2024[;] [2] List of calls answered by either the director or assistant director of 311. Please indicate which calls are answered by each[;] [3] [A] list or report on all fines or/and violations from jan 1 2024 until Oct 30[;] [4] [A] list or report for local 25 clerical workers with salaries from 1/22 until 12/24[;] [5] [A]ll emails from [an identified] . . . former School Department CFO to [an identified individual] for fiscal years 2020, 2021, 2022[;] [6] Legal expenses and invoices paid to represent or defend [an identified City employee] against . . . [two identified individuals’] civil rights lawsuit[;] [7] [A]ll legal expenses/invoices associated with the federal civil law suits . . . by [two identified indivduals] against the School Committee and [an identified City employee][;] [8] [A]ll emails to and from amils [sic] from . . . [an identified] former School Department CFO, and [an identified] former Superintendent . . . to/from [an identified individual] for timeframe Jan 2023 thru N[o]v1 2023[;] [9] [A]ll emails to/from [an identified individual] to/from [an identified 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. SPR24/3149 Page 2 November 27, 2024 individual] from Jan 1 thru Nov 1 2023[;] [10] [A] copy of what Title I funding were used for each of these years: 2017, 2018, 2022, 2023, 2024[.] In an email to this office on November 22, 2024, Ms. Sterite objected to the City’s petition. Subsequent to the opening of this petition, on November 27, 2024, the City provided additional information regarding its petition. 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…”

Colleen Mejia, Esq. SPR24/3149 Page 3 November 27, 2024 On November 27, 2024, the City provided additional information regarding its petition and stated the following: As detailed in its initial petition, which is expressly incorporated herein, the City has already responded to 176 requests this past year alone from Ms. Sterite, and a total of 527 requests in the past three years. Since June 2024 alone, the City has received 85 public records requests from this Requestor. In her most recent ten requests, the Requestor is seeking records from seven different departments. These departments are receiving multiple requests over a short period of time, many of which are seeking potentially hundreds of records. In total, it is estimated that it will take a combined 80 hours to search for and locate records in response [to] this series of requests. The work necessitated by these requests will have to be added to City personnel’s other municipal responsibilities, which include municipal operations, as well as responding to other public records requests on behalf of the City. If City personnel were required to respond to all of these requests within the ten business days allotted under the statute, the Departments would be unable to perform their other governmental functions given their staffing constraints and workload. In particular, it will take the Town’s IT department 60 hours to produce records for the multiple requests. This would take an employee an estimated 10 days working full time to respond to these requests. In other words, IT staff would have to work exclusively on responding to this request to respond within the statutory deadline. This is an unreasonable burden to place on the City for the benefit of one individual to the detriment of other members of the public. 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

Colleen Mejia, Esq. SPR24/3149 Page 4 November 27, 2024 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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”). It is estimated that the Records Access Officer will have to expend four hours coordinating and locating responsive records, and making redactions required by law. The actual cost of this

Colleen Mejia, Esq. SPR24/3149 Page 5 November 27, 2024 work at the RAO’s hourly rate is $352.80, meaning that the City would be operating at a loss of over $250.00. The amount is reasonable insofar as represents the City’s actual cost to respond to a small portion of the total number of requests from this individual in recent history 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 segregate, review and redact 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. Paula Sterite…” and states that “[Ms. Sterite’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.” In support of its request for relief, the City argues the following: Specifically, as outlined in detail below and the attachments to this Petition, the City has already previously responded to 176 requests this past year alone by Ms. Sterite, and a total of 527 requests in the past three years. Since June 2024 alone, the City has received 85 public records requests from this Requestor. By way of background, 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 continuously, straining limited City staff with limited time and resources, which are detrimental to the City’s municipal operations, work and efforts. … 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. . . .

Colleen Mejia, Esq. SPR24/3149 Page 6 November 27, 2024 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. . . . [T]he Requestor has sent at least 176 requests this past year alone, and a total of 527 requests in the past three years, garnering 18 petitions to the Supervisor. Often, the Requestor sends multiple requests over a short time span, taxing the City’s ability to respond and straining its government operations and resources, to perform other municipal functions. . . . 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 with, she escalates her requests through 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 2,000 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 even include the many requests and additional harassing e-mails the Requestor has sent to City officials this year and in numerous years prior. … It is further evident that the requests and associated e-mails are not for the broad dissemination of information to the public for personal reasons. For example, in the most recent series of requests, the Requestor seeks information on all emails between the City’s CFO and the former Superintendent of School for a one year period and then all emails between the City’s CFO and the School Department’s CFO for a one year period. In another request she similarly sought all emails between the City’s DEI Director and the former Superintendent of Schools for a 2 year period. In perpetrating this campaign, the City respectfully submits that the targeted nature of these requests clearly demonstrate that the Requestor is not intending broad dissemination of information to the public but rather to intimidate the City officials and employees. 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).

Colleen Mejia, Esq. SPR24/3149 Page 7 November 27, 2024 Conclusion Accordingly, I find the City has established good cause for a time extension of 30 business days. However, I find 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. Sterite 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). 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. Sterite within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Sterite 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: Paula Sterite