Commonwealth Transparency v. Salem, City of - Legal Department (SPR 20250433)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 26, 2025 SPR25/0433 Joanne M. Roomey Records Access Officer City of Salem – Legal Department 93 Washington Street Salem, MA 01970 Dear Ms. Roomey: I have received the petition of Commonwealth Transparency (“requestor”) appealing the response of the City of Salem (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 1, 2025, the requestor sought: During the explicit timeframe October 20, 2024 through December 10, 2024 only; Any letter, electronic communication, and/or message including but not limited to written documents, emails (Electronic mail), text messages, collaboration messages from platforms like teams, WhatsApp, and Git; Where the subject matter is The Commonwealth of Massachusetts’ Emergency Shelter Policy, specifically, but not limited to Statement(s) on ‘Changes to the State’s Emergency Shelter Policy’; This request seeks records which may be, but are not limited to meeting agendas or minutes; This request seeks records which may be, but are not limited to correspondence sent to or received from Governor Maura Healy; This request seeks records which may be, but are not limited to correspondence sent to or received from elected officials or representatives of any of the following municipalities: Acton, Boxborough, Andover, Barnstable, Bedford, Beverly, Boston, Brewster, Bridgewater, Brookline, Cambridge, Chelsea, Easthampton, Everett, Franklin, Gloucester, Greenfield, Haverhill, Lawrence, Leominster, Littleton, Lowell, Lynn, Malden, Medford, Melrose, Newton, Northampton, Orleans, Pittsfield, Rockport, Salem, Somerville, Southbridge, Springfield, Wakefield, Waltham, Watertown, Wilbraham, Wilmington, and Worcester[.] 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

Joanne M. Roomey SPR25/0433 Page 2 February 26, 2025 The City responded on February 13, 2025, providing a fee estimate. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR25/0433, was opened as a result. Fee Estimates – Municipalities 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. 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 hour if such rate is approved by the Supervisor 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The City’s February 13th Response In its February 13, 2025 response, the City states that the request “is an overly broad and voluminous request, and we ask you to narrow your search significantly.” I encourage the requestor and the City to communicate further in order to facilitate producing records efficiently and affordably. The requestor may wish to narrow the parameters or include applicable factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The City must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). Further, in its response, the City provided a fee estimate of $825.00 and stated the following:

Joanne M. Roomey SPR25/0433 Page 3 February 26, 2025 … In the meantime, we have estimated staff time needed to search, copy and send materials you requested would be well over a week (35 hours). With the first two (2) hours provided to you free of charge, the remaining 33 hours at $25 per hour would result in a cost to you of $825.00. Please keep in mind this is only an estimate, should the search result in more materials, this amount may increase or less materials may decrease…. Current Appeal In the appeal petition, the requestor states, “Salem is the only recipient to claim that the request is overly broad and will require thirty-five hours of search. Thirty-five hours for search is egregious and a plain tactic to prevent the release of public records. Of 24 responding municipalities, not one has been unable to perform a comprehensive search within 2 hours besides Salem.” Reasonableness of the fee estimate Where the City provided a response within 10 business days, it is necessary to review the reasonableness of the City’s fee estimate. Based on the City’s fee estimate, it is unclear why it will take 35 hours to search, copy and send materials to the requestor. The City must provide additional information regarding the tasks involved in producing these records. Accordingly, the City must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, the City’s fee estimate lacks confirmation that the rate per hour is of the lowest paid employee who is capable of performing the task(s). The City must clarify this matter. Conclusion Accordingly, the City is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations 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: Commonwealth Transparency