Cassandra Dumay v. Lawrence, City of - City Attorney's Office (SPR 20250581)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 5, 2025 SPR25/0581 Kevin P. Foley, Esq. First Assistant City Attorney City of Lawrence Office of the City Attorney 200 Common Street, Room 107 Lawrence, MA 01840 Dear Attorney Foley: On February 28, 2025, this office received your petition on behalf of the City of Lawrence (City) seeking an extension of time to produce records and requesting permission to charge for time spent segregating and 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, Cassandra Dumay, of the Boston Globe. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On February 14, 2025, Ms. Dumay requested “...[a]ll arbitration decisions dated January 1, 2020 to the date of this request related to the suspension, dismissal, removal, or termination of any municipal employee.” 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 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. SPR25/0581 Page 2 March 5, 2025 (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). Current Petition In its petition, the City requests “… 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 and are not centrally located or readily available and thus will require significant coordination, search and retrieval efforts among multiple City Departments including Budget & Finance, Personnel, Payroll, and Legal as well as outside counsel and city insurance agents. 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. 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. Based on the information provided in the City’s February 28th 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).

Kevin P. Foley, Esq. SPR25/0581 Page 3 March 5, 2025 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 or to charge in excess of $25 an hour for the provision of public 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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).

Kevin P. Foley, Esq. SPR25/0581 Page 4 March 5, 2025 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 “for waiver of statutory fee limits to charge for time spent segregating and redacting records” and provides the following in support of its request: [R]ecords involving discipline, demotion, termination may be withheld from disclosure in accordance with G. L. c. 4, § 7(26)(c) on the grounds that the disclosure may constitute an unwarranted invasion of privacy. 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). Conclusion In light of the above, I find it is unnecessary to opine on the City’s petition for an extension of time. The City is advised that it must seek a petition for an extension of time if it cannot provide responsive records within (25) business days of the receipt of the request. G. L. c. 66, § 10(c). Additionally, to the extent the responsive records contain the exempt information as described above, the City may assess a fee for segregation and redaction. Further, I encourage the parties to communicate further to enable the City to provide records in an efficient and affordable manner. Please note, Ms. Dumay 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: Cassandra Dumay