Adam Nuñez v. Salem, City of - Legal Department (SPR 20250548)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 28, 2025 SPR25/0548 Joanne M. Roomey Records Access Officer City of Salem 93 Washington Street Salem, MA 01970 Dear Ms. Roomey: On February 25, 2025 this office received your petition on behalf of the City of Salem (City) seeking an extension of time to produce records and permission to charge for time spent segregating or 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, Adam Nuñez. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On February 12, 2025 Mr. Nuñez requested the following: From the dates of June 8, 2024 - June 27, 2024, I am requesting all email communications, both within and in between the Salem Police Department, Salem Department of Public Services, and the Salem Mayor’s Office, solely regarding communications leading up to, that took place during, and took place after, the eventual dispersal and removal of the tent encampment, commonly known as the ‘South River encampment,’ ‘Wendy's encampment,’ or ‘Tent City’ in Salem, Massachusetts on June 26, 2024, solely regarding the eventual dispersal and removal of the tent encampment, commonly known as the ‘South River encampment,’ ‘Wendy’s encampment,’ or ‘Tent City’ in Salem, Massachusetts on June 26, 2024. Including, but not necessarily limited to (within the given parameters), all applicable communications solely surrounding the dispersal orders posted by the Salem Police Department at the same tent encampment on June 13, 2024 and June 21, 2024, as well as the decision by [an identified individual] to confirm in a story published by the Boston Globe on June 25, 2024 titled, “Salem homeless encampment coming to an end,” that the plan was to sweep the tent encampment “around 10 or 11” on June 26, 2024. On February 25, 2025, Mr. Nuñez sent a correspondence objecting to the City’s petition. 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 SPR25/0548 Page 2 February 28, 2025 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. 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 Records In its petition, the City requests “an additional 20 business days beyond the time specified under the statute…” In support of its request the City provides the following information: …the scope of redaction required to prevent unlawful disclosure (under Exemptions A and C) is significant, there is significant volume of pages that will require an attorney to review, only one attorney is available, there are 280 emails a good many of which contain multiple-page attachments, and due to other competing needs of the office of the city solicitor the attorney is not available eight hours per day for this request. In light of the need to collect and examine the records, and the capacity of the City to produce the records without an extension, the City has established good cause to permit an

Joanne M. Roomey SPR25/0548 Page 3 February 28, 2025 extension of time. G. L. c. 66, § 10(c)(i)-(iii). The City is granted an extension of 20 business days. 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 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). Current Petition In its petition, the City requests, “authorization to charge for time spent segregating and redacting records.” In support of its request, the City provides the following information concerning anticipated redactions: The records sought in the request need to be reviewed, and potentially redacted under Exemption C where the emails may contain information that requires redaction under Exemption C. … I note that these emails may contain information exempt from Disclosure under Exemption A, the statutory exemption to the extent they contain documents with sensitive data protected by G. L. Ch. 66A, information about domestic violence, sexual assault and rape victims and complaints exempt by G. L. ch. 209A and G. L. c. 41, § 97D, alcohol treatment records as protected under G. L. ch. 111B, §11, Extreme Risk Protection Orders under G. L. c. 140, § 131R, and the attorney- client privilege among other possible statutory protections. And likewise, because the records are emails between city employees (police officers, social workers, a police chief, a mayor and various other staff members), involved in directly responding to calls for help, and providing services to some

Joanne M. Roomey SPR25/0548 Page 4 February 28, 2025 of our community’s most vulnerable individuals, those who are unhoused, and during a time period leading up to the removal of the homeless encampments in the city’s public parks, these communications likely contain personally identifying information and could contain information of a medical or personal nature of this vulnerable population the disclosure of which may be an unwarranted invasion of personal privacy. 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. See G. L. c. 66, § 10(d)(iv). Further, this office encourages the requestor and the City to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii). Please note, Mr. Nuñez 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: Adam Nuñez