Grace Ferguson v. New Bedford, City of - Office of The City Solicitor (SPR 20250724)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 28, 2025 SPR25/0724 Katherine Schuko, Esq. Associate City Solicitor City of New Bedford 133 William Street New Bedford, MA 02740 Dear Attorney Schuko: I have received the petition of Grace Ferguson, of The New Bedford Light, 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 February 27, 2025, Ms. Ferguson requested the following: [C]ontracts and annual payroll records since January 1, 2023 for all city contractors and employees who worked on the risk assessment for the American Rescue Plan Act grant that was given to New Bedford Research and Robotics. Please include contracts that were initiated prior to January 1, 2023 if those contracts were active on January 1, 2023. Please provide payroll records that show name, title(s), and earnings of the specified employees. The City responded on March 12, 2025, providing numerous responsive records and a fee estimate. Unsatisfied with the City’s response, and objecting to the fees, Ms. Ferguson petitioned this office, and this appeal, SPR25/0724, was opened as a result. 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, 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

Katherine Schuko, Esq. SPR25/0724 Page 2 March 28, 2025 § 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. Attorney 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 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). The City’s March 12th Response In its March 12, 2025 response, the City provides numerous responsive records, and a total fee estimate of $87.50 for providing others. In support of its fee estimate, the City explains the following: As the City has expended over two hours of employee work in fulfilling your request thus far, the City provides the following good-faith fee estimate to perform the remaining work necessary to fulfill your request: The City anticipates that it will take an additional 2.5 hours to search for and

Katherine Schuko, Esq. SPR25/0724 Page 3 March 28, 2025 compile the remaining potentially responsive records and 1 hour to segregate and apply redactions or withholdings pursuant to common law principles of attorney- client privilege and work product, and 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 financial account numbers in combination with a resident’s first name and last name or first initial and last name. This time estimate is based on how the requested records are kept, the City’s experience fulfilling similar requests, and the scope of your request. The lowest paid employee capable of performing the necessary work to complete 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 (3.5 hours) * ($25.00/hour) = $87.50 In its March 12th fee estimate, the City has indicated that the first two hours have been provided at no charge, and has explained that it will charge less than the lowest hourly rate attributed to the lowest paid employee who has the necessary skills to perform the tasks, and has explained that the segregation and redaction is required by law. However, it is unclear why the City requires 2.5 hours to search for and compile the records and one hour to segregate and redact the records. The City must provide further details regarding the types of records, the tasks involved, and what each task entails. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). For the reasons discussed above, I find the City must either revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the City is ordered to provide Ms. Ferguson with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Grace Ferguson