Commonwealth Transparency v. Lawrence, City of - City Attorney's Office (SPR 20250442)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 19, 2025 SPR25/0442 Kevin P. Foley, Esq. First Assistant City Attorney City of Lawrence 200 Common Street, Room 107 Lawrence, MA 01840 Dear Attorney Foley: On February 14, 2025, this office received your petition on behalf of the City of Lawrence (City) seeking an extension of time to produce records, permission to charge for time spent segregating or redacting responsive records and a waiver of statutory limits on fees that may be assessed in responding to the request. 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 this petition to the requestor, Open Commonwealth (requestor). G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On February 1, 2025, the requestor sought the following records for the period of October 20, 2024 through December 10, 2024: [a]ny 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.” Petitions 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; 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. SPR25/0442 Page 2 February 19, 2025 (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) shall 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 review of email (records) of nearly 3,000 employees regarding the Commonwealth of Massachusetts Emergency Shelter Policy. The City IT Department would be needed in order to collect these records and City staff would need to examine, segregate and redact the records before disclosing them. Our IT Department is currently inundated with such requests. 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 retrieved, segregated, reviewed 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. 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.

Kevin P. Foley, Esq. SPR25/0442 Page 3 February 19, 2025 Based on the City’s petition, I find that in light of the need to search for, collect, segregate and examine the records and the capacity of the City to produce the request without the extension, the City has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The City is granted an extension of 20 business days for the pending request. Petition to Assess Fees – Municipalities The Supervisor of Records (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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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. SPR25/0442 Page 4 February 19, 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 to charge fees for segregation and redaction of the responsive records, and argues the following in support of its request: [G]iven the nature of records sought by this request, as presently constituted, would contain sensitive records subject to redaction and withholding under G. L. c 4, §7(26)(d) because they pertain to the deliberative process exemption which is intended to avoid release of records that could taint the deliberative process if disclosed prematurely. 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. Fee in Excess of $25.00 per Hour In its petition, the City requests a “waiver of statutory limits to assess fees required to segregate and redact these records” and provides the following in support of its request: The City provides the following good faith estimate for the actual cost to retrieve, segregate and redact the records. The City states that the actual cost of producing the records is three hundred seventy-five ($100.00) dollars [sic], constituting four (4) hours at twenty-five ($25.00) dollars an hour, based upon all of the factors and set forth in this petition. Where the City only seeks to assess fees at a rate of $25 per hour, I find it is unnecessary to opine on the City’s request to charge fees in excess of $25 per hour. Conclusion As described above, I find the City has established good cause for a time extension of 20 business days as described above. To the extent the responsive records contain the exempt information as described above, the City may assess a fee for segregation and redaction limited to $25.00 per hour. See G. L. c. 66, § 10(d)(iv)

Kevin P. Foley, Esq. SPR25/0442 Page 5 February 19, 2025 Please note, the requestor 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: Open Commonwealth