Jonathan Gerhardson v. Lawrence, City of - City Attorney's Office (SPR 20250562)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 28, 2025 SPR25/0562 Kevin P. Foley, Esq. First Assistant City Attorney City of Lawrence 200 Common Street, Room 107 Lawrence, MA 01840 Dear Attorney Foley: On February 27, 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 the petition to the requestor, Jonathan Gerhardson. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On February 13, 2025, Mr. Gerhardson requested: [1] FY2023, FY2024 municipal expenditure report as submitted to caremass.org[;] [2] [T]he city’s balance sheet for its opioid settlement funds account[;] [3] [R]ecords related to expenditures made from this account, or with settlement funds that demonstrate what the money was spent on, for what purpose, who was paid, etc. Please note that in an email to this office and the City on February 27, 2025, Mr. Gerhardson objected to the City’s petition. Specifically, Mr. Gerhardson contested the City’s request for permission to charge for time spent segregating or redacting responsive records. 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 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. SPR25/0562 Page 2 February 28, 2025 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 Responsive Records In its petition, the City requests “for an extension of time, not to exceed 10 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: [T]he request, as presently constituted, encompasses records going back more than five (5) years which are subject to review and redaction. After collecting these records, 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 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. SPR25/0562 Page 3 February 28, 2025 Based on the information provided in the City’s February 27th petition, I find it is unnecessary to opine on the City’s extension request. In this case, the City intends to provide responsive records within twenty five (25) business days of the receipt of the request, as allowed in G. L. c. 66 § 10(b)(vi). See G. L. c. 66, § 10(b)(vi) (records access officer may identify a reasonable timeframe for producing records not to exceed 25 business days following initial receipt of the request). 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

Kevin P. Foley, Esq. SPR25/0562 Page 4 February 28, 2025 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). Petition to Assess Fees In its petition, in addition to charging for segregation and redaction required by law pursuant to Exemption (a) of the Public Records Law, the City argues the following in support of its request to charge for segregation and redaction under Exemptions (d), (f), (o) and (p): [T]he records sought by this request, are likely subject to: G. L. c 4, §7(26), exemption (d) the deliberative process exemption involving interagency and intra- agency memoranda and letters on legal and policy matters; exemption (f) investigatory materials necessarily compiled out of public view by law enforcement or other investigatory officials the disclosure of which would probably prejudice effective law enforcement or not be in the public interest; exemption; and exemptions (o) and (p) regarding withholding the name, home address, personal email and telephone number of government employees and their family members. Based on the information provided in its fee 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 segregation or redaction. See G. L. c. 66, § 10(d)(iv). 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.

Kevin P. Foley, Esq. SPR25/0562 Page 5 February 28, 2025 Conclusion As described above, it is unnecessary to opine on both the City’s request for an extension of time and its request for a waiver of statutory limits. 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 Mr. Gerhardson 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). Mr. Gerhardson may appeal the City’s response within ninety days. See 950 C.M.R. 32.08(1). Please note, Mr. Gerhardson 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: Jonathan Gerhardson