Paula Sterite v. Everett, City of - Office of the City Clerk (SPR 20243194)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 11, 2024 SPR24/3194 Colleen Mejia, Esq. City Solicitor City of Everett 484 Broadway, Room 10 Everett, MA 02149 Dear Attorney Mejia: I have received the petition of Paula Sterite appealing the response of the City of Everett (City) to ten requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Between November 5, 2024 and November 19, 2024, Ms. Sterite requested: [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 individual] … 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 individuals] against the School Committee and [an identified City employee][;] [8] [A]ll emails to and from … [an identified individual] … and … [an identified individual] 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 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[.] 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. SPR24/3194 Page 2 December 11, 2024 Prior Petition These requests were the subject of a prior petition seeking an extension of time, relief from the obligation to produce responsive records, and permission to charge an hourly rate in excess of $25.00. See SPR24/3149 Determination of the Supervisor of Records (November 27, 2024). In my November 27th determination, I found that the City had established good cause to permit an extension of time of 30 business days. However, I did not grant permission to charge an hourly rate in excess of $25.00 per hour, nor relief from the obligation to produce responsive records. The City provided a response on November 20, 2024. Unsatisfied with the response, Ms. Sterite petitioned this office and this appeal, SPR24/3194, was opened as a result. Status of the Requestor; Reason for the Request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Sterite’s purpose in making the requests has no bearing on the public status of any existing responsive records. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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).

Colleen Mejia, Esq. SPR24/3194 Page 3 December 11, 2024 The City’s November 20th Response In its November 20, 2024 response, the City estimated that it possessed approximately 3,800 documents responsive to Ms. Sterite’s request. The City further stated: … [T]he lowest paid employees capable of doing this work are paid at rates of more than $25.00 per hour, you will be charged at the maximum rate of $25.00 per hour. Please note, that at the last Decennial U.S. census, the City of Everett had a population of 49,075; because the City has more than 20,000 residents, you will not be charged for the first two hours of work associated with this request … The City’s cost estimate is broken down as follows: Title Hours Rate Total Per Hour 311 40 minutes (to create the search, locate $25.00 $16.00 Services electronic information, such as responsive reports and convert them to formats capable of review and redaction; search for hard-copy files; review for responsiveness and redact records where required by law). Inspectional 2.2 hours (to create the search, to locate $25.00 $54.00 Services electronic information, such as responsive reports and convert them to formats capable of review and redaction; search for hard-copy files; review for responsiveness and redact records where required by law). Human 20 minutes (to locate electronic $25.00 $8.00 Resources information, such as responsive reports and convert them to formats capable of review and redaction; search for hard- copy files; review for responsiveness and redact records where required by law). IT 60 hours (to create the search, locate $25.00 $1,500.00 Department electronic information, such as responsive reports and convert them to formats capable of review and redaction; search for hard-copy files; review for responsiveness and redact records where required by law).

Colleen Mejia, Esq. SPR24/3194 Page 4 December 11, 2024 Finance 4.2 hours (to create the search, locate $25.00 $104.00 Department electronic information, such as responsive reports and convert them to formats capable of review and redaction; search for hard-copy files; review for responsiveness and redact records where required by law). School 12.7 hours (to create the search, locate $25.00 $317.00 Department electronic information, such as responsive reports and convert them to formats capable of review and redaction; search for hard-copy files; review for responsiveness and redact records where required by law). Records 4 hours (to coordinate the search for $25.00 $100.00 Access responsive hard copy and electronic Officer records and conduct necessary privilege review). Total 80 hours N/A $2,049.00 ($2,099.00- $50/first two hours of search time, as required) In support of its claim that the segregation and redaction for which it seeks to assess a fee is required by law, the City states: … [The responsive records] may contain personally identifiable information subject to redaction under Exemptions (a) and (c) of the Public Records Law. Exemption (a) applies to records that are “specifically or by necessary implication exempted from disclosure by statute”, which includes documents relating to individual financial security pursuant to Chapter 93H of the General Laws; and Exemption (c) applies to “personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” … You have further requested legal expenses and invoices. The attorney-client privilege applies to all communications between an attorney and client for the purpose of obtaining or providing professional legal services to the client. Therefore, any responsive communications containing information protected from disclosure under the attorney-client privilege will be withheld or redacted. See

Colleen Mejia, Esq. SPR24/3194 Page 5 December 11, 2024 Suffolk Construction Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-450 (2007). In email communications to this office on November 25, 2024 and November 27, 2024, Ms. Sterite explained her reasoning for making each of the public records requests. Ms. Sterite stated that she intends to widely disseminate the responsive records, and claimed that disclosure is in the public interest because it will tend to expose fraud, waste, and abuse. On those grounds, she requested that the fees associated with these requests be waived. Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10(d)(v); see also 950 C.M.R. 32.07(2)(k). Reasonableness of the Fee Estimate Although the City has stated that responding to Ms. Sterite’s requests will require a total of 80 hours, the City’s per-task estimates of the required time total 84.1 hours. Consequently, it is unclear how much time, in total, the City requires to respond to Ms. Sterite’s request. The City must clarify this matter. Based on the City’s response, it is unclear how it requires 80 hours to respond to Ms. Sterite’s request. Further, it is unclear how many hours each of the listed departments has allocated for the search, segregation, and redaction of the responsive records. It is also unclear how many pages of records each of the listed departments has in its custody, and how many minutes per page it will take to segregate and redact the responsive records. The City must clarify these matters. Additionally, it is not clear from the City’s response why the responsive records must be converted to an alternative format. The City must explain the tasks involved in the conversion of

Colleen Mejia, Esq. SPR24/3194 Page 6 December 11, 2024 the responsive records, and how G. L. c. 66, § 10(d) permits the assessment of a fee for the performance of those tasks. Further, the City appears to be assessing a fee for redactions under Exemptions (a) and (c) of the Public Records Law, and the attorney-client privilege. 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 pursuant to 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). Consequently, the City must clarify if the fee assessed includes time necessary to redact records under Exemption (c) of the Public Records Law. For the reasons discussed above, I find the City must revise its fee estimate or provide further explanation of how the fee of $2,049.00, assessed in its November 20th estimate is consistent with G. L. c. 66, § 10(d). This office encourages Ms. Sterite and the City to communicate further in order 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 the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate. Conclusion Accordingly, the City is ordered to provide Ms. Sterite with a response to her requests, 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. Ms. Sterite may appeal the substantive nature of the City’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Paula Sterite Janelle M. Austin, Esq.