Dalia Diaz v. Lawrence, City of - City Attorney's Office (SPR 20250234)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 29, 2025 SPR25/0234 Kevin P. Foley, Esq. First Assistant City Attorney City of Lawrence 200 Common Street, Room 107 Lawrence, MA 01840 Dear Attorney Foley: On January 27, 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, Dalia Diaz, of Rumbo News. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On January 12, 2025, Ms. Diaz requested “records of employees placed on leave with pay under the administration of [three identified individuals].” 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: (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. 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

Kevin P. Foley, Esq. SPR25/0234 Page 2 January 29, 2025 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: The current request is very broad and far reaching, especially considering that it seeks records and financial information regarding individual employees going back to the administration of Lawrence Mayor Daniel Rivera, who was elected in 2013 and took office in January 2014, so dating back 11 years. The City has more than 3,000 employees and this request will place a significant burden on the City’s Payroll, Personnel and Comptroller’s offices, precisely at the time that these departments are in the process of providing all employee important tax information, including W2s and options for open enrollment for health insurance. [T]he request, as presently constituted, encompasses a potentially large volume of records dating back more than 11 years, which will require significant time to identify, retrieve and collect. 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 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

Kevin P. Foley, Esq. SPR25/0234 Page 3 January 29, 2025 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 $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my understanding that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). 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

Kevin P. Foley, Esq. SPR25/0234 Page 4 January 29, 2025 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). Petition to Assess Fees In its petition, the City requests “authorization to charge for time spent segregating and redacting records” and argues the following in support of its request: As presently constituted the request would require retrieval of hundreds and hundreds of records for the past 11 years. Given the nature of the request, as presently constituted, the records would contain sensitive information subject to redaction and withholding under G. L. c 4, §7(26)(c) because they relate to specifically named individuals and contain personal information, the disclosure of which may constitute an unwarranted invasion of personal privacy. Some personnel information regarding individual employees may be withheld or redacted under Exemption (c). In light of the City’s petition, I find the City has met its burden to explain how given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the City may assess a fee for the segregation and redaction of such exempt material. Conclusion Accordingly, I find the City has established good cause for a time extension of 20 business days as described above. Additionally, to the extent the responsive records contain the exempt information described above, the City may assess a fee for segregation and redaction. This office encourages Ms. Diaz and the City to continue to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). Please note, Ms. Diaz 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).

Kevin P. Foley, Esq. SPR25/0234 Page 5 January 29, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Dalia Diaz