Avalon Esposito v. Cambridge, City of - Office of the City Clerk (SPR 20251186)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 5, 2025 SPR25/1186 Seah Levy Records Access Officer City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: On April 29, 2025, this office received your petition on behalf of the City of Cambridge (City) seeking an extension of time to produce records and a waiver of statutory limits on fees that may be assessed in responding to the request. 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, Avalon Esposito, of A+E Global Media. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On April 14, 2025, Ms. Esposito requested, “[a]ny materials (photos, case records, recordings, interrogation transcripts) relating to the Boston Strangler case, murders taking place from June 14, 1962 - January 4, 1964. [An identified individual’s] casefile (1962 – 1967), as well as any additional materials about the following [nine identified individuals][.]” 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 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

Seah Levy SPR25/1186 Page 2 May 5, 2025 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). Request for Additional Time to Produce Responsive Records In its petition, the City requests an extension of 40 business days and provides the following information in support of its request: The City has located several boxes containing the original case file regarding the murder of [an identified individual], a resident of Cambridge who is believed to be the tenth victim of the Boston Strangler. These records are a minimum of sixty (60) years old and have not been digitized or duplicated. In order to provide the requested records, the City will need significant time and resources to duplicate, review and provide these records, while taking the necessary care to preserve the originals. The City will attempt to undertake this production internally, but some or all of these records may need to be sent to a vendor that specializes in the preservation and digitization of this type of document. Additionally, because of the sensitive nature of these documents, as they pertain to murder and potentially to a sexual assault investigation, the City’s Law Department will need time to carefully review and redact these records as required by law. I find that in light of the need to search for, collect, segregate or examine the records, the scope of redaction required to prevent unlawful disclosure and the capacity of the City to produce the request without the extension, the City has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). Accordingly, 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

Seah Levy SPR25/1186 Page 3 May 5, 2025 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 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; 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). 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).

Seah Levy SPR25/1186 Page 4 May 5, 2025 Commercial Purpose In its April 29th petition, the City argues that the request is made for a commercial purpose, and provides the following information in support of its argument. The Requester in this matter has written to us on behalf of A+E Global Media. A+E Global Media owns and operates several television brands, including A&E and the History Channel, and it is owned and operated by Hearst Communications and the Walt Disney Company. A&E is known for producing True Crime Documentaries. The City therefore believes that this request has been made for commercial purposes. Please be advised that the term “commercial purpose” as used in the Public Records Law shall mean: the sale or resale of any portion of the public record or the use of information from the public record to advance the requester’s strategic business interests in a manner that the requester can reasonably expect to make a profit, and shall not include gathering or reporting news or gathering information to promote citizen oversight or further the understanding of the operation or activities of government or for academic, scientific, journalistic or public research or education. G. L. c. 66, § 10(d)(ix). Based on the information provided by the City, it is unclear how the request would meet the statutory definition of “commercial purpose” within the Public Records Law. See G. L. c. 66, § 10(d)(ix); see also SPR20/2599 Determination of the Supervisor of Records (January 5, 2021). Specifically, the City has not shown that the requested records do not include gathering or reporting news or how the records were not requested for the purpose of academic, scientific, journalistic or public research or education. Petition to Assess Fees In its petition, the City also requests “[t]he ability to charge actual costs for any outside vendor that may be employed to duplicate these records while preserving what are original, fragile, and sensitive materials.” Subsequent to the opening of this petition, in an email to this office on April 30, 2024, the City provided the following additional information: [T]he situation is made difficult by the fact that in order to employ a vendor, the City often has to follow M.G.L. c 30B when retaining the services of an outside vendor. We may not need an outside vendor, but we cannot determine this at the time. The case file dates from the early 1960s. Everything is very old, very fragile paper, or other materials – either typewritten, or handwritten. Each will have to

Seah Levy SPR25/1186 Page 5 May 5, 2025 be carefully handled. If we can manage the job ourselves, we will, but these are the only materials, and the original materials, for a homicide case, one of the victims of the Boston Strangler. We want to take care to preserve the originals, and make sure no harm comes to them in the process of duplication. Based on the City’s petition, I find the City has not met its burden to explain how the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Conclusion As described above, I find that the City has established good cause for a time extension of 30 business days. However, as described above, I find it unclear how the request meets the statutory definition of “commercial purpose” within the Public Records Law. Additionally, I find the City has not met its burden to assess fees in excess of $25.00 per hour. Please note, Ms. Esposito 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, §§ 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Avalon Esposito