Jeremy Freudberg v. Newton, City of - City Clerk (SPR 20252234)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 13, 2025 SPR25/2234 Jaclyn R. Zawada, Esq. Assistant City Solicitor City of Newton Law Department 1000 Commonwealth Avenue Newton Centre, MA 02459 Dear Attorney Zawada: I have received the petition of Jeremy Freudberg appealing the response of the City of Newton (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 15, 2025, Mr. Freudberg requested the following: [1] Violation data for overnight parking December 1, 2024 through March 31, 2025[.] [2] Appeals data for overnight parking violations December 1, 2024 through March 31, 2025[.] The City responded on April 29, 2025, providing a fee estimate, and assigned reference number 25-404 to this request. On May 2, 2025, Mr. Freudberg modified “this request to be for only the violation data,” and stated he would “submit a separate request for the appeals data.” On May 2, 2025, Mr. Freudberg requested “appeals data for overnight parking violations December 1, 2024 through March 31, 2025.” The City responded on May 8, 2025, providing a fee estimate, and assigned reference number 25-453 to this request. Unsatisfied with the City’s responses, Ms. Freudberg petitioned this office, and this appeal, SPR25/2234, 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 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

Jaclyn R. Zawada, Esq. SPR25/2234 Page 2 August 13, 2025 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, § 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). Current Appeal In his appeal petition, Mr. Freudberg argues the following: My request was for “Appeals data for overnight parking violations December 1, 2024 through March 31, 2025.” In its response, the City asserted that “that it will take approximately 4 hours to segregate and extract the responsive data, as well as redact material required to be withheld by law.” The City’s estimate of 4 hours is

Jaclyn R. Zawada, Esq. SPR25/2234 Page 3 August 13, 2025 false by its own admission – the City’s RAO/paralegal . . . had written to me in an email dated May 1, 2025 regarding a different public records request that the same “appeals data” would take “approximately 2.5 hours to extract, analyze for any redactions or removal, and produce onto an excel.” 2.5 hours is certainly not 4. . . . There is simply no legal basis for the City’s contention that the requests should be somehow combined. I agreed to a modification of that previous request for just a portion of the records sought, and then made a new request for the remainder, which ‘restarted the clock’ by giving the City another 10+ business days. The City seeks to treat me differently than any other person making an identical request. In an email to this office and the City on August 1, 2025, Mr. Freudberg further argues the following: If I had had notice prior to submitting my request that the combined request would’ve taken 4 hours, I would’ve submitted two separate requests from the beginning. It is worth noting that the violation data and appeals data are stored in separate systems. There is no reason why they had to be a single request. The City’s May 5th Fee Estimate and Responses In its May 5, 2025 response, the City provides the following fee estimate: [T]he City has determined it will take approximately 4 hours, two of which will be waived, at a rate of $25.00 per hour for the lowest paid employee capable of reviewing, compiling, and if necessary segregating and redacting documents or information as required by law. An itemization of this estimate is set forth below. The City estimates that it will take approximately 4 hours to segregate and extract the responsive data, as well as redact material required to be withheld by law. After the two-hour deduction, 2 hours at a rate of $25.00 per hour equals a good faith estimate of $50.00. In accordance with M.G.L. c. 66, the City now notifies you that the good faith estimate to produce the documents equals $50.00. Once payment of this amount is received, the City will produce the documents responsive to your request in the time allowed. Modification In an email to the City on April 29, 2025, Mr. Freudberg states that he is “open to modifying [his] request, but first [he] would like to understand the basis for the City’s estimate of work hours.” In an email on the same day, the City recommends that Mr. Freudberg “may

Jaclyn R. Zawada, Esq. SPR25/2234 Page 4 August 13, 2025 consider narrowing the time frame for which [he] seek[s] data (for example, 4 weeks instead of the 4 months sought).” In an email to this office and Mr. Freudberg on August 1, 2025, the City explains the following: As a courtesy . . . City staff have reviewed this matter once more. Because Mr. Freudberg received the benefit of the violations data, which took staff 1.5 hours, and because it appears from request 25-453 that Mr. Freudberg may accept the remaining 0.5 free hours, staff is willing to provide a commensurate portion of the responsive appeals data, which would be a one-month period of Mr. Freudberg’s choosing between December 1, 2024 and March 31, 2025. Mr. Freudberg is advised that a requestor may not divide a request into multiple parts in order to circumvent the fees allowed by the Public Records Law. Where Mr. Freudberg and the City have both shown a willingness to modify the scope of the request, this office encourages Mr. Freudberg and the City to continue to communicate directly in order to facilitate providing records more efficiently and affordably. Mr. Freudberg may consider narrowing the scope of his request to enable the City to provide the records more efficiently and affordably. The City must use its superior knowledge of the records to suggest any potential reasonable modifications to the request. 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). Conclusion If outstanding issues remain after Mr. Freudberg and the City communicate further as described above, Mr. Freudberg may file an appeal within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jeremy Freudberg