Tom Duggan v. Lawrence, City of - Office of the City Clerk (SPR 20251346)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 28, 2025 SPR25/1346 Timothy Houten, Esq. City Attorney City of Lawrence 200 Common Street Lawrence, MA 01840 Dear Attorney Houten: I have received the petition of Tom Duggan, of The Valley Patriot, appealing the response of the City of Lawrence (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 18, 2024, Mr. Duggan requested the following records: [1] All reports, CAD’s, notes, memos, FIO’s or any other records or documents mentioning the name of [identified individuals] from January 2023 to present date. [2] [A]ll emails, interoffice memos, all correspondence to and from [an identified individual] . . . for the same time period, as well as all documents showing complaints about from [an identified individual], disciplinary actions taken, and steps to rectify any and all complaints from members of the public or other city workers. On March 11, 2025, Mr. Duggan modified his request as follows: “... for now restrict these to emails to and from [an identified individual]. If I require additional emails I will send a new request.” Previous Petition This matter was the subject of a previous petition. See SPR25/0098 Determination of the Supervisor of Records (February 5, 2025). In this petition, I found that the City submitted its petition on January 10, 2025, more than ten business days after receipt of the request; therefore, permission to charge for time spent segregating or redacting responsive records was not granted. 950 C.M.R. 32.06(4)(d). 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

Timothy Houten, Esq. SPR25/1346 Page 2 May 28, 2025 The City responded on December 23, 2024, February 12, 2025, February 13, 2025, February 14, 2025, February 15, 2025, March 10, 2025, March 11, 2025, March 12, 2025 and March 25, 1025. Unsatisfied with the responses, Mr. Duggan petitioned this office and this appeal, SPR25/1346, was opened as a result. 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 (two) 2 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 appeal In his appeal, Mr. Duggan asserts, “I am still waiting for the (January request) time sheets of (then) [identified] public employee over the two and a half year time frame she worked for the city as she was a non union salary employee who illegally received overtime during that period [and] I am also asking for two years of emails that they are trying to charge me in excess of $11,275.” The City’s Responses In its December 23, 2024 response, the City stated, “[y]our public records request has been received and forwarded to the Departments referenced above. If it takes more than two (2) hours to compile and/or redact the requested records, you will be charged. The charge will not exceed $25 per hour. A reasonable cost for materials may be added on if necessary.” In its February 12, 2025, February 13, 2025, and February 14, 2025 responses, the City explained the process of producing the responsive records. In its February 15, 2025 response, the City stated,

Timothy Houten, Esq. SPR25/1346 Page 3 May 28, 2025 In a separate email on Friday morning I told you I would inquire about the availability of timesheets as I was not sure the City had copies of those. I found out that the City does not keep individual timesheets but rather timesheets for entire departments. If you want those I must make significant redactions, for privacy purposes to comply with state law, before releasing them. With regards to the emails sought by your request, the City’s IT Director informed me Friday afternoon that there [are] more than 15,000 emails meeting the criteria and time period for the records you seek. I had no idea that the City had that volume of emails on this subject before giving you a good faith estimate of costs to provide the records. It has already taken IT several days to search and retrieve these emails. . . .Regardless of the additional time needed to provide these records, I must revise my good faith estimate to $11,375.00 equaling 455 hours at $25.00 an hour. As you know the Secretary of the Commonwealth allowed the City to charge fees for time segregating and redacting records as required by law. I would be happy to work with you to narrow the focus of the request in an effort to provide these records in a more timely and less costly manner. In its March 10, 2025, March 11, 2025, and March 12, 2025 responses, the City responded to Mr. Duggan’s emails and explained the process and the law governing fee estimate requests. In its March 25, 2025 response, the City stated, The timesheets over 71 separate 2-week time periods and cover the entire department. The good faith estimate to retrieve, redact and produce the timesheets is $150.00 (6 hours @ $25.00 per hour). With regards to the emails, I confirmed that the 15,000 emails are emails to and from [an identified individual] and not just emails that mention her name. As such, my previous good faith estimate of $11,375.00 stands for the reasons previously provided. Based upon Mr. Duggan’s modification of March 11, 2025, the City’s response of March 25, 2025 is timely. In its response, the City incorporated its February 15, 2025 response. Although the City has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 455 hours of employee time, it is unclear how the City requires this amount of time to produce responsive records. The City must advise how much time is needed to search, how much time is needed to segregate and/or redact under the law. Additionally, if redactions are required, I find the City must provide information about whether the responsive records contain information that that is required by law to be segregated or redacted, as well as the applicable statutes, if any. Based upon the City’s February 15, 2025 response, it is unclear whether the City is charging for exemptions that are not required by law. See G. L. c. 66, § l0(d)(iii) (a fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law for Exemption (a) or attorney client privilege or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv)). Further, it is uncertain how many

Timothy Houten, Esq. SPR25/1346 Page 4 May 28, 2025 minutes per page the City requires to review the records, as well as the tasks involved to produce the requested records. As such, the City must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The City must clarify. Additionally, the City’s fee estimate lacks confirmation that the rate of $25 per hour is of the lowest paid employee who is capable of performing the task(s). Further, it is unclear if the City has deducted the first (two) 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested as required under G. L. c. 66, § 10(d)(iii). For the reasons discussed above, I find the City must revise its fee estimate or provide further explanation of how the fee estimate of $11,375.00, is consistent with G. L. c. 66, § 10(d). This office encourages Mr. Duggan and the City to communicate further 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 of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate. Conclusion Accordingly, the City is ordered to provide Mr. Duggan with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 10 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: Tom Duggan