Colman Herman v. New Bedford, City of - Office of The City Solicitor (SPR 20250523)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 7, 2025 SPR25/0523 Romina Moniz, Esq. Associate City Solicitor City of New Bedford 133 William Street New Bedford, MA 02740 Dear Attorney Moniz: I have received the petition of Colman Herman appealing the response of the City of New Bedford (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 18, 2025, Mr. Herman requested: [1] Records of any and all expenses that [a named individual] incurred in his capacity as mayor of the City of New Bedford for the period January 1, 2024 to December 31, 2024. [a] Expense reports, including back-up receipts [b] Credit cards statements, including back-up receipts [c] Automobile expense records, including back-up receipts [d] Any and all other records that document [the Mayor’s] expenses, including back-up receipts. Please note that I am seeking both source documents and a spreadsheet or summary of the expenses. [2] The written employee reimbursement policy of the City of New Bedford. Previous Appeal This request was the subject of a previous appeal. See SPR25/0327 Determination of the Supervisor of Records (February 14, 2025). In my February 14th determination, I found that Mr. Herman provided sufficient particularity required to identify the documents he is seeking. The City provided a response on February 14, 2025, providing a fee estimate for $117.50. Unsatisfied with the City’s response, Mr. Herman petitioned this office and this appeal, SPR25/0523, was opened as a result. 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

Romina Moniz, Esq. SPR25/0523 Page 2 March 7, 2025 The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. Fee estimate – 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, 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).

Romina Moniz, Esq. SPR25/0523 Page 3 March 7, 2025 The City’s February 14th Response In its February 14, 2025 response, the City states: Based on the specifications provided in your clarified request [sic], the City has conducted a search of its records and has identified 112 pages of potentially responsive records. Before providing you with the records, the City will need to segregate each page and make redactions and withholdings pursuant to G.L.c. 93H, § 1, in accordance with G.L.c. 4, § 7(26)(a). Exemption (a) requires a records access officer to redact or withhold certain information that falls under an active statute. G.L.c. 93H, § 1, requires redaction of credit card and financial account numbers. The City anticipates that it will take approximately 2 minutes to segregate each page (or ‘item’) and redact credit card and financial account information in accordance with, but not limited to, the above cited authority. This time estimate is based on the City’s experience with similar records requests and a precursory review of the potentially responsive records. The following equation summarizes the calculated time, in hours, needed to complete your request:  (112 items) * (2 minutes/item to segregate, redact/withhold) = 224 minutes;  (224 minutes) * (1 hour / 60 minutes) = 3.7 hours to segregate and redact The City has spent 3 hours of employee time searching for and compiling the potentially responsive records. As outlined by the Massachusetts Public Records Law, municipalities may not assess a fee for the first two hours of personnel time taken to search for, compile, segregate and redact, or reproduce the record(s) requested unless said municipality is comprised of 20,000 people or less. The City of New Bedford has a population of more than 20,000 individuals. The City is therefore seeking payment for 4.7 hours of employee time anticipated to fulfill your request [(6.7 hours)-(2 hours at no charge)]. The lowest paid employee capable of performing the necessary work to fulfill your request has an hourly rate that exceeds $25.00 per hour. Under the Massachusetts Public Records Law, the maximum hourly rate that can be charged is $25.00 per hour. The City is therefore seeking payment of (4.7 hours) * ($25.00/hour) =$117.50. In addition to the statutorily required redactions described above, the City anticipates applying redactions to personal telephone numbers, identifying traveler information (such as KTNs) and additional identifying credit card information (such as CPNs) pursuant to G.L.c. 4, § 7(26)(c), and expense numbers pursuant to G.L.c. 4, § 7(26)(n).

Romina Moniz, Esq. SPR25/0523 Page 4 March 7, 2025 Current Appeal In his current appeal, Mr. Herman states, “[the City] responded … by imposing a fee of $117.50 for segregation and redaction. In doing so, [it] claims ‘G.L.c. 93H, §1, in accordance with G.L.c. 4, § 7(26)(a).’ G.L.c. 93H, §1 is a list of definitions and nothing more. Moreover, G.L.c. 93H has nothing to do with public officials…. Exemptions (c) and (n) are both discretionary and thus [the City] cannot charge for them. Moreover, [its] attempt to redact ‘expense numbers pursuant to G.L.c. 4, § 7(26) (n)’ borders on the bizarre.” Although the City claims that it is assessing a fee for redactions under Exemption (a), it is unclear if the City intends on assessing fees for redactions under Exemption (c) and (n). 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 under 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). I am not aware that the City has submitted a petition under G. L. c. 66, § 10(d)(iv). As such, although the City may assess a fee for redactions required by law under Exemption (a), it is uncertain whether the fees include time to redact records under Exemptions (c) and (n). The City must clarify this. For the reasons discussed above, I find the City must revise its fee estimate or provide further explanation of how the fees assessed are expressly provided for and consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the City is ordered to provide Mr. Herman with a response to his 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: Colman Herman