Tom Duggan v. Lawrence, City of - City Attorney's Office (SPR 20250098)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 15, 2025 SPR25/0098 Timothy P. Houten, Esq. City Attorney City of Lawrence 200 Common Street Lawrence, MA 01840 Dear Attorney Houten: On January 10, 2025, this office received your petition on behalf of the City of Lawrence (City) seeking an extension of time to produce records and requesting permission to assess fees for time spent segregating and redacting 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, it is my understanding that the City furnished a copy of the petition to the requestor, Tom Duggan. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On December 18, 2024, Mr. Duggan requested: [1] All reports, CAD’s notes, memos, FIO’s or any other records or documents mentioning [three identified search terms] from January 2023 to present date[;] [2] [A]ll emails, interoffice memos, all correspondence to and from [an identified individual] the city’s homeless coordinator for the same time period, as well as all documents showing complaints about [an identified individual], disciplinary actions taken, and steps taken to rectify any and all complaints from members of the public or other city workers[.] It is my understanding the City received the request on December 23, 2024. 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: 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

Timothy P. Houten, Esq. SPR25/0098 Page 2 January 15, 2025 (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 requests “for an extension of time, not to exceed 20 business days, from the date of the grant of the extension, to furnish the records responsive to this request[,]” and provides the following information in support of its request: As grounds for allowance of the extension, the request, as presently constituted, encompasses a potentially large volume and broad range of records “pertaining to [an identified individual] as the City Homeless Coordinator.” In order to retrieve the records, the City would be required to employ its Information Technology department to write a program in order to identify and collect all emails and correspondence sent and received and pertaining to [an identified individual] as the City Homeless Coordinator. After those records are identified, the City staff would need to examine, segregate and redact the records before disclosing them. Although city employees work 35 hours each week to complete their regular duties, there is no dedicated staff assigned to review and redact records responsive to FOIA requests. As such, the records sought by the present request would need to be segregated and redacted during normal business hours in addition to completion of regular duties. The City is unaware of any public interest which will be served by expeditious disclosure. Indeed, as previously mentioned, the City has offered to work with the Requestor to narrow the scope of the request in efforts to agree to a reasonable description of the precise records sought in order to provide the records in a more affordable and timely manner. The City has also

Timothy P. Houten, Esq. SPR25/0098 Page 3 January 15, 2025 asked the Requestor to voluntarily agree to an extension beyond the statutory deadline. In light of the need to collect, segregate and examine the records, as well as the capacity of the City to produce the records without an extension, the City has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The City is granted an extension of 20 business days. Petition to assess fees – Municipalities The Supervisor may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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).

Timothy P. Houten, Esq. SPR25/0098 Page 4 January 15, 2025 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). The City submitted its petition on January 10, 2025, more than ten business days after receipt of the request. In light of the fact the City has not demonstrated it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records cannot be granted. 950 C.M.R. 32.06(4)(d). Conclusion Accordingly, the City has established good cause for a time extension of 30 business days as described above. However, in light of the fact that the City has not demonstrated it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records cannot be granted. 950 C.M.R. 32.06(4)(g). Please be advised, however, this does not preclude the City from charging for segregation and redaction that is required by law. I encourage the parties to communicate further to enable the City to provide records in an efficient and affordable manner Please note, Mr. Duggan has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Tom Duggan