Kim Jekyll v. Dukes County Regional Housing Authority (SPR 20250052)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 16, 2025 SPR25/0052 David Vigneault Executive Director Dukes County Regional Housing Authority 21 Mechanic Street, P. O. Box 4538 Vineyard Haven, MA 02568 Dear Director Vigneault: I have received the petition of Kim Jekyll appealing the response of the Dukes County Regional Housing Authority (Authority) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 24, 2024, Ms. Jekyll requested “[a]ll correspondence between Dukes County Regional Housing Authority and Island Housing Trust regarding home inspections.” Previous Appeal This request was the subject of a previous appeal. See SPR25/0005 Determination of the Supervisor of Records (January 2, 2025). In my January 2nd determination, I found that the Authority had provided Ms. Jekyll with a supplemental response. Unsatisfied with the Authority’s response, Ms. Jekyll petitioned this office, and this appeal, SPR25/0052, was opened as a result. Subsequent to the opening of this appeal, the Authority provided responses on January 8 and January 9, 2025. 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, 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

David Vigneault SPR25/0052 Page 2 January 16, 2025 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). The Authority’s Responses In its January 2, 2025 response, the Authority assessed a fee of $80.00 to provide responsive records. In its January 8, 2025 response, the Authority revised its assessed fee, estimating a cost of $95.00 to provide approximately 400 pages of responsive records. The Authority further stated: Redaction of personal information on the reports would be of a tenant’s name, phone number, and signature. This is in accordance with DCRHA policies and procedures that protect a tenant’s right to personal privacy and confidentiality, such as in our use of a Fair Information Practices Act Statement of Rights. A tenant’s right to privacy comports with exemption (c) in M.G.L. c.4, s7, clause 26 … The response to the request for inspection reports for the years 2020 to 2024 will require locating such reports in both active and inactive tenant files, the copying of each report, the physical redaction of tenant information, and the scanning of each sheet into an e-file for delivery. The effort required by our three full time and one half time staff persons for addressing roughly four hundred documents in this fashion will minimally number between four to six hours. The Mass Guide to Public Records states that the DCRHA, as a municipal body working with an Island population reported by the last US Census as over 20,000, is not allowed to charge for the first two hours of a compliance effort … [The DCRHA will] charge for three hours of staff effort at the twenty-five dollars ($25.00) prescribed, the median of the remaining, conservative estimate of hours needed for compliance with the request. Addition of the four hundred (400) copies at 5 cents per would total ninety-five dollars ($95.00) in charges. In its January 9, 2025 response, the Authority confirmed that the lowest paid employee with the skill necessary to respond to the request is paid at a rate greater than $25.00 per hour. The Authority further stated:

David Vigneault SPR25/0052 Page 3 January 16, 2025 Of the six estimated hours of staff effort, three (3) would be for locating all requested records of annual apartment inspection, with the largest amount of time reserved for a search of stored records for both former tenants and longer-term tenants; one (1) hour for copying; one (1) hour for redaction of personal information; and one (1) hour for scanning, sending, and replacing all documents in their respective files. The Authority has indicated that it will charge one hour to scan, send, and replace the documents in their respective files. It is unclear how the Authority may assess a fee for time spent sending documents and replacing them in their respective files under G. L. c. 66, § 10(d)(iii). See also G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, the Authority appears to be assessing a fee for redactions made under Exemption (c) of the Public Records Law. 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 Authority 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 Authority must revise its fee estimate or provide further explanation of how the fee of $95.00 assessed in its January 8th estimate is consistent with G. L. c. 66, § 10(d). With regard to Ms. Jekyll’s objections regarding the Authority’s proposed redactions under of Exemption (c) of the Public Records Law, please be advised that where the Authority has yet to produce the records, I find that the matter cannot be addressed at this time, as the contents of these records are unclear. Once responsive records are provided, Ms. Jekyll may appeal the substantive nature of the Authority’s response within ninety calendar days. See 950 C.M.R. 32.08(1). This office encourages Ms. Jekyll and the Authority 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 Authority is ordered to provide Ms. Jekyll with a response to the request, 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

David Vigneault SPR25/0052 Page 4 January 16, 2025 office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Ms. Jekyll may appeal the substantive nature of the Authority’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Kim Jekyll