Joan P. Beckta v. Everett, City of - Office of the City Clerk (SPR 20243195)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 11, 2024 SPR24/3195 Colleen M. Mejia, Esq. City Solicitor City of Everett 484 Broadway Everett, MA 02149 Dear Attorney Mejia: I have received the petition of Joan Beckta appealing the response of the City of Everett (City) to requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 4 and November 5, 2024, Ms. Beckta requested, “[1] The total number of classrooms in the Devens … School. [2] The Report on the capacity of the Devens School, that is, a report on how many students it can hold… [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…” On November 18, 2024, Ms. Beckta also requested, “[5] The rules of the Zoning Board of Appeals as required by G.L. 40a Section 12.” Previous Petition These requests were the subject of a previous petition from the City. See SPR24/3140 Determination of the Supervisor of Records (November 27, 2024). In my November 27th determination, I found that the City had met its burden for an extension of 30 business days, but had not met its burden to asses a fee in excess of $25.00 per hour. Concurrent with its petition, the City responded to Ms. Beckta on November 19, 2024, providing a fee estimate. Unsatisfied with the City’s response, and objecting to the fees, Ms. Beckta petitioned this office and this appeal, SPR24/3195, 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, 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 M. Mejia, Esq. SPR24/3195 Page 2 December 11, 2024 § 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 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). The City’s November 19th response In its November 19, 2024 response, the City provided a fee estimate of $75.50 and states: [Y]ou have requested documents which 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… The disclosure of documents containing personally identifiable information, including but not limited to social security numbers, driver’s license

Colleen M. Mejia, Esq. SPR24/3195 Page 3 December 11, 2024 numbers, cell phone numbers and other personal information which would result in an unwarranted invasion of privacy and are protected from disclosure pursuant to Exemptions (a) and (c). Therefore, any such information will be redacted from any documents provided. It is estimated that it will cost a total of $75.50 to comply with your requests, which is based on estimated employee search and segregation time charged at the hourly rate of the lowest paid person capable of searching for the responsive records… Where the 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. Title Hours Rate Per Total Hour School 2.5 hours (to locate electronic $25.00 $63.00 Department 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). City Solicitor 1.5 hours (to locate 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 1 hour (to coordinate the search Access for responsive hard copy and Officer electronic records and convert all responsive records into a format capable of production in electronic format). Total 5 Hours N/A $125.50- $50/first two hours of search time, as required= $75.50

Colleen M. Mejia, Esq. SPR24/3195 Page 4 December 11, 2024 Current Appeal In her appeal petition, Ms. Beckta states, “I think, but am not sure, that their basis for that request is that I file a lot of requests. Since they are not all for the same department or on the same topic, I do not understand their reasoning. There is no review or redaction necessary in a request to Finance for a report on the Revenue Loss ARPA account or, from the City Solicitor, a copy of the rules of the Zoning Board of Appeals that are required by law. While I am aware that I do not have to give my reasons for the records’ requests, I operate in the full light of day. I do not have a problem explaining why I want these records.” With regard to Ms. Beckta’s objections regarding the City’s claims of exemptions, please be advised that where the City has yet to produce the records, I find these matters cannot be addressed at this time, as the contents of these records are unclear. Once records are provided, Ms. Beckta may appeal the substantive nature of the City’s response within ninety calendar days. See 950 C.M.R. 32.08(1). Although the City has estimated that the process of segregating or redacting the requested records would require 5 hours, it is unclear the number of pages that the City intends to segregate or redact and the number of minutes that the City must spend per page for review. Further, it is not clear from the City’s estimate how much time is allocated to search, and how much time is allocated for segregation and/or redaction of the records. Additionally, the City indicated in its November 19th response that its estimate includes time to “convert all responsive records into a format capable of production in electronic format[.]” However, it is unclear how the City may assess a fee for conversion under G. L. c. 66, § 10(d)(iii). I find the City must provide additional information explaining how this task, constitutes time to search for, compile, segregate, redact, or reproduce records and how it is chargeable under G. L. c. 66, § 10(d)(iii). See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Although the City claims that it is assessing a fee for redactions under Exemption (a) and (c), it is unclear how the City 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). For the reasons discussed 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). Conclusion Accordingly, the City is ordered to provide Ms. Beckta with a response to her request, provided in a manner consistent with this order, the Public Records Law and its Regulations

Colleen M. Mejia, Esq. SPR24/3195 Page 5 December 11, 2024 within ten (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. Sincerely, Manza Arthur Supervisor of Records cc: Joan Beckta