William Rodgers II v. Lawrence, City of - City Attorney's Office (SPR 20250841)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 1, 2025 SPR25/0841 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 March 27, 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, William Rodgers II. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On March 12, 2025, Mr. Rodgers requested the following records: [1] The investigation conducted by [identified officers] in reference to LPD incident report numbers...[;] [2] The results of any investigation into the allegations made in the Maverick report as it pertains to Lawrence Police Department members[;] [3] The investigation into the crime scene video [an identified officer] shared with the former Human Resources Director who was not a police employee[;] [4] The investigation by [an identified officer] into the video of the two Lawrence Police Officers illegal shooting their gun in Salem, N.H.[;] [5] The investigation into and the warrant that was obtained by [an identified officer] investigating one of the officers in number 4 for his communications with a female minor who was 16 years old. The warrant was for a phone search[;] [6] Any reports that deal with the status of former [identified officer’s] investigation[;] 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. SPR25/0841 Page 2 April 1, 2025 [7] The status of the investigation into the leak of the Bennett report to the District Attorneys Office. 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). Current Petition In its petition, the City requests “for an extension of time, not to exceed 30 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: [The City] states it has been inundated with requests since January 1st and this particular request encompasses a potentially large volume of records, which will require significant time to research, identify, retrieve, collect, and produce. [A]lthough the City employees work 35 hours each week to complete their regular

Kevin P. Foley, Esq. SPR25/0841 Page 3 April 1, 2025 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 segregated and redacted during normal business hours in addition to completion of regular duties. [A]s 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, segregate and examine the records, efforts undertaken by the City in fulfilling the current request, as well as the capacity of the City to produce the records without an extension, 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 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).

Kevin P. Foley, Esq. SPR25/0841 Page 4 April 1, 2025 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). Petition to Assess Fees In its petition, the City requests “authorization to charge for time spent segregating and redacting records” and provides the following in support of its request: [T]here is no doubt that the records sought by this request, as presently constituted, are subject to: G. L. c. 4, § 7(26), exemption (c) personnel and medical files or information 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; 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 with and the City Attorney for the purpose of obtaining legal advice and assistance are protected from disclosure under the attorney-client privilege. Suffolk Contr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 (2007).

Kevin P. Foley, Esq. SPR25/0841 Page 5 April 1, 2025 Conclusion As described above, I find that the City has established good cause for a time extension of 30 business days. Further, in light of the fact that the City has not demonstrated that it submitted its petition within ten business days after receipt of the request, permission to charge for time spent segregating or redacting responsive records cannot be granted where such segregation or redaction is not required by law. 950 C.M.R. 32.06(4)(g). Please note, however, this determination does not preclude the City from charging for segregation and redaction that is required by law. Please note, Mr. Rodgers 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: William Rodgers II