Matthew Andrade v. Lawrence, City of - City Attorney's Office (SPR 20250821)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 31, 2025 SPR25/0821 Kevin P. Foley, Esq. Office of the City Attorney City of Lawrence 200 Common Street Lawrence, MA 01840 Dear Attorney Foley: On March 25, 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, it is my understanding that the City furnished a copy of the petition to the requestor, Matthew Andrade, Esq., of Perrault Blair Law Group, PLLC. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On March 11, 2025, Attorney Andrade requested the following records: [1] [T]he identity of any and all contractors that have provided work for and/or at [the] intersection [of Lynn and South Union Street in Lawrence, Massachusetts], and the work performed from the year 2000 to the present[;] [2] [T]he identity of any individuals, firms, entities, contractors, engineers, consultants, etc. etc. who have had anything to do with this crosswalk since the year 2000, and their involvement. On March 12, 2025, Attorney Andrade narrowed the timeframe in his request “to seek documents and communications from years 2011‐2017[.]” Concurrent with the opening of this petition, in an email to this office and Attorney Andrade on March 25, 2025, a representative of the City stated: I was unaware of the revision until I was provided it today. Having the scope narrowed to the years 2011-2017 helps, however the request is still very broad. . . . 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. SPR25/0821 Page 2 March 31, 2025 As such, the City stands by its request for an extension of time to produce the records and shall revise its good faith estimate regarding fees should the petition be allowed. In the meantime, the City will gladly work with the requestor to see if we can narrow the request in order to provide the records more timely and efficiently. Subsequent to the opening of this petition, in an email to this office and Attorney Andrade on March 26, 2025, a representative of the City further opined: The primary focus of the request for fees is the time beyond the two hours needed to research, retrieve, and produce the records. We are prepared to give a good faith revised estimate of requested fees to requestor based upon the revised request, however we are hopeful in the meantime to narrow the scope of the request further so no fees will be required. 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).

Kevin P. Foley, Esq. SPR25/0821 Page 3 March 31, 2025 Request for Additional Time to Produce Records In its petition, the City requests, “25 business days . . . to furnish the records responsive to this request.” In support of its request, the City provides the following information: As grounds for allowance of the extension, the request, as presently constituted, encompasses records . . . of anyone who had “anything to do with this intersection.” The records sought by this request are not kept on a single data base or central location that’s easily accessible, retrievable and providable without extensive efforts and coordination among several City departments. 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 researched, retrieved, compiled and produced 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 light of the need to collect and examine the records, the capacity of the City to produce the request without the extension, and the 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 25 business days. Petition to Assess Fees – Municipalities The Supervisor of Records 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). The second prong of the test is whether the fee represents an actual and good faith

Kevin P. Foley, Esq. SPR25/0821 Page 4 March 31, 2025 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 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 March 25, 2025 petition, the City seeks “permission to assess a reasonable fee to research, retrieve, compile and produce the records sought by this request.” In this case, where the City indicated in its March 26, 2025, email to this office and Attorney Andrade that, “[t]he primary focus of the request for fees is the time beyond the two hours needed to research, retrieve, and produce the records” and the City has not requested in its petition to assess fees for segregation or redaction of the records under the various exemptions of the Public Records Law, I find it unnecessary to opine on that portion of the City’s March 25th petition requesting permission to assess fees. Conclusion As described above, I find that the City has established good cause for a time extension of 25 business days. Please note, Attorney Andrade 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),

Kevin P. Foley, Esq. SPR25/0821 Page 5 March 31, 2025 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Matthew Andrade, Esq.