Cassandra Dumay v. Lawrence, City of - City Attorney's Office (SPR 20250601)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 6, 2025 SPR25/0601 Kevin P. Foley, Esq. Office of the City Attorney City of Lawrence 200 Common Street Lawrence, MA 01840 Dear Attorney Foley: On March 3, 2025, this office received your petition on behalf of the City of Lawrence (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, I understand that the City furnished a copy of this 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 18, 2025, Ms. Dumay requested “[a]ll communications sent from the Lawrence City Council, Mayor’s Office and all city departments (listed here [at a specified website]) to any U.S. Attorney.” I understand the City assigned reference number 2025-FOIA- 222 to this request. 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; (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 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. SPR25/0601 Page 2 March 6, 2025 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. 32.06(4)(b). Request for Additional Time to Produce Responsive Records In its petition, the City requests an extension of 30 business days and provides the following information in support of its request: As grounds for allowance of the extension, the request, as presently constituted, encompasses records unlimited by date and time perimeters which after being collected 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. In its petition, the City also explains the following: Given the broad nature of request, the records sought would contain sensitive records subject to redaction and withholding ... under G. L. c 4, §7(26) or other legally applicable privileges. ... The statutory exceptions would include, without limit, documents subject to the Criminal Offender Record Information Act, G. L. c. 6, § 167, and the laws regarding confidentiality of domestic violence records i.e. G. L. c. 4 1, § 97D, (rapes), G. L. c. 4 1, § 98F (domestic violence logs), and G. L. c. 209A, § 8 (restraining orders).

Kevin P. Foley, Esq. SPR25/0601 Page 3 March 6, 2025 I find that in light of the need to search for, collect, segregate and examine the records, the scope of redaction required to prevent unlawful disclosure, the capacity of the City to produce the request without the extension, and efforts undertaken by the City in fulfilling the current request, 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 30 business days. 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. SPR25/0601 Page 4 March 6, 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). Current Petition to Assess Fees In its petition, the City request “permission to assess fees required to segregate and redact these records.” In support of its request, the City argues the following: [T]here is no doubt that the records sought by this request, as presently constituted, are likely subject to: G. L. c 4, §7(26), exemption (b) records related solely to internal personnel rules and practices; exemption (c) personnel and medical files or in formation and other materials related to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of privacy; exemption (d) the deliberative process exemption involving inter-agency 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 (j) allowing custodians of firearms records to withhold in the applications and licenses of firearm license holders; and exemptions (o) and (p) regarding withholding the name, home address, personal email and telephone number of government employees and their family members. In addition, all confidential communications between the Council, Mayor and the Attorney General and the City Attorney for the purpose of obtaining legal advice and assistance are protected from disclosure under the attorney-client privilege. 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 30 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. This office encourages Ms. Dumay and the City to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification to the scope of the request or offer to assist

Kevin P. Foley, Esq. SPR25/0601 Page 5 March 6, 2025 the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Any subsequent fee estimate from the City must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). 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