Steve Blomerth v. Beverly Regional Airport (SPR 20243222)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 12, 2024 SPR24/3222 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 SPR24/3222 Page 2 December 12, 2024 Prior Appeal This request was the subject of a prior appeal. See SPR24/2968 Determination of the Supervisor of Records (November 13, 2024). In my November 13th determination, I found that the Airport must provide further details regarding its fee estimate. The Airport provided a response on November 27, 2024, further explaining the fee estimate. Unsatisfied with the response, and objecting to the fees, Mr. Blomerth petitioned this office and this appeal, SPR24/3222, 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

Beth A. Oldmixon SPR24/3222 Page 3 December 12, 2024 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). Current Appeal In his appeal petition, Mr. Blomerth states, “I am forwarding the response I just received this morning 11/28/2024 from [the Airport] regarding their… seemingly inflated cost estimates for producing these records. I hope you can review their response and render an opinion as to whether their demands are reasonably supported by their evidence or whether they are attempting to circumvent Massachusetts law regarding freedom of information statutes.” The Airport’s November 29th Response In its prior response on October 11, 2024, the Airport provided a fee estimate of $500.00 and stated the following: 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. In its November 27, 2024, response, the Airport reiterated its $500.00 fee estimate and stated the following: The search resulted in over 275 records matching the criteria. The total number of pages exceeds 2,700.

Beth A. Oldmixon SPR24/3222 Page 4 December 12, 2024 The following steps are required to compile electronic mail records and convert the records into a format that can be reviewed and electronically produced. [1.] The information technology department (“IT”) conducts a search of the electronic mail system and saves each record as an individual file. [2.] Before the record can be reviewed it must first be downloaded and converted into a pdf file. This step must be conducted separately for each record. [3.] Each record must then be saved with a unique identifying file name. After the initial retrieval by IT, the time to download and convert each record to a reviewable and producible format is approximately 2.5 minutes per record. At a rate of 1 record per 2.5 minutes, the time to compile 275 records totals 11.5 hours ((275 x2.5)/60)=11.5 hours. Once converted to pdf, each page must then be reviewed and redacted as required by law. Emails are unlike other types of documents in that there is no pattern to the text in the emails and each email requires a close line-by-line review to ensure no information requiring redaction by law is overlooked. Because emails are more likely to be subject to exemptions, they require closer scrutiny to apply mandated redactions. A cursory review of the records reveals an unknown number may contain information exempt from disclosure as required by law. M.G.L. c. 66, Section 10(d); 950 CMR 32.07(2)(d). Specifically, the emails may contain attorney-client privilege communication exempt from disclosure as required by law… [The Airport] estimates it will take 11 hours to segregate and redact the records, as required by law. This calculation estimates 240 pages reviewed per hour. As stated above, every line in every record must be read to ensure no information requiring redaction by law is overlooked. [The Airport] estimates a rate of review of 240 pages per hour for a total of 11.25 hours. 2,700 pages / 240pages/hour = 11.25 hours. With respect to the approximately 275 records (over 2,700 pages) 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 Airport] 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. Moreover, while not included in the cost for segregation and redaction of the emails, [the Airport] notes that the records 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

Beth A. Oldmixon SPR24/3222 Page 5 December 12, 2024 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)). In this case, the Airport has explained that it will charge for segregation and redaction of the records as required by law under the attorney-client privilege, has explained the amount of time required to segregate and redact records, has clarified that the 20 hours includes the first free 2 hours to search for, compile, segregate, redact or reproduce records, and confirmed that the lowest paid individual with the necessary skill is paid more than $25 per hour. As such, I find the Airport has met its burden to establish that it would take this amount of time to prepare the responsive records for production. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). 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 of the request or include applicable time periods or factors to enable the search to be processed. Conclusion As set forth above, I find the Airport has met its burden in responding to the request at this time. Any revision to the request would result in the requirement to issue a revised fee estimate. Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Steve Blomerth