Jeffrey Pontiff v. Newton, City of (SPR 20252267)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 14, 2025 SPR25/2267 Carol Moore City Clerk City of Newton 1000 Commonwealth Avenue Newton, MA 02459 Dear Ms. Moore: I have received the petition of Jeffrey Pontiff 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 July 16, 2025, Mr. Pontiff requested “. . . all documents, emails, and texts from the City of Newton that were produced after May 2, 2025, with any of the following strings, [6000, 6,000, 6002, or 6,002]. . . .” The City provided a response on July 31, 2025, which included a fee estimate. Unsatisfied with the City’s response, and objecting to the fees, Mr. Pontiff petitioned this office and this appeal, SPR25/2267, 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 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. 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

Carol Moore SPR25/2267 Page 2 August 14, 2025 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). The City’s July 31st Response In its July 31, 2025 response, the City denied the portion of Mr. Pontiff’s request seeking documents and texts, and advised as follows: Please be advised the City has received your request for “all documents, emails, and texts from the City of Newton that were produced after May 2, 2025, with any of the following strings, “6000”, “6,000”, “6002”, or “6,002.” Except as to emails, this item must be denied because it does not reasonably identify the records sought. . . . Specifically, it is unclear what records are sought in reference to “documents.” Furthermore, this item lacks sufficient detail to enable City staff to identify responsive “texts” using reasonable effort. See G.L. c.66 §10(a)(i) (requiring that public records requests “reasonably describe[] [sic] the public record sought”). See also Friedman v. Division of Administrative Law Appeals, 103 Mass. App. Ct. 806, 820 (2024). Therefore, except as to emails, this item must be denied. The City additionally provided a fee estimate of $80,624.25 for the provision of records responsive to the portion of Mr. Pontiff’s request seeking emails. Specifically, the City explained the following:

Carol Moore SPR25/2267 Page 3 August 14, 2025 Notwithstanding above, the City was able to run an email search for potentially responsive emails as follows: the City’s IT Department ran a search for all emails to or from anyone within the City for the time frame of May 2, 2025, to July 30, 2025, with the keywords “6000”, “6,000”, “6002”, or “6,002.” Based on these parameters, the City’s IT department identified 193,618 emails that are potentially responsive to your request. The City will need to review all 193,618 emails for responsiveness and to segregate and potentially to redact any documents that are required to be withheld by law. To carry out this process, the City has determined it will take approximately 3,226.97 hours, two (2) of which will be waived, for the lowest paid employee capable of reviewing, compiling, segregating and, if necessary, redacting the emails as required by law. That process will be done simultaneously by one City employee at an estimated time of one (1) minute per email. This leads to an estimated total time of 3,226.97 hours. After the two-hour deduction, 3224.97 hours at a rate of $25.00 per hour equals a good faith estimate of $80,624.25. . . . . Otherwise, the City invites you to submit a new request that does reasonably describe the records sought. Specifically, if you provide as much detail as possible, such as relevant department or city employees (e.g. Inspectional Services Department) whose emails or phones you wish us to search, more specific keywords that may help in assisting us to get you the actual documents you are requestion [sic], or a more narrowed time frame, this will greatly assist the City in locating responsive records, if any. Alternatively, please let me know if you would like to discuss reasonable modifications that could allow records to be provided more efficiently and affordably. Current Appeal In his August 4, 2025 petition to this office, Mr. Pontiff contests the City’s response to the portion of his request seeking documents and texts “on the grounds that the request does not [‘]reasonably describe the public record sought[’] is inconsistent with M.G.L. c. 66, § 10(a)(i)[.]” Mr. Pontiff additionally objects to the City’s fee estimate for the production of responsive email records, as described above. He argues, “[t]he City . . . provided an excessive cost estimate for email production, which I believe does not comply with the Massachusetts Public Records Law, M.G.L. c. 66, § 10, and relevant regulations and case law.” Narrowing of the scope of the request Subsequent to the opening of this appeal, I learned that Mr. Pontiff narrowed his request. On July 31, 2025, in three separate requests, Mr. Pontiff sought, “all emails and texts to and from [an identified City representative] after May 2, 2025, with any of the following strings, [6000, 6,000, 6002, or 6,002][,]” as well as “all emails and texts to and from [an identified individual]

Carol Moore SPR25/2267 Page 4 August 14, 2025 after May 2, 2025, with any of the following strings, [6000, 6,000, 6002, or 6,002][,]” and “all emails and texts bewteen [sic] [an identified City representative] and [an identified individual] after May 2, 2025, with any of the following strings, [6000, 6,000, 6002, or 6,002].” Where this appeal was opened as a result of the City’s July 31, 2025 response to Mr. Pontiff’s July 16, 2025 request, I will now consider this administrative appeal closed. This office encourages Mr. Pontiff and the City to continue to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). Any subsequent fee estimate from the City must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Conclusion Accordingly, the City is ordered to provide Mr. Pontiff with a response to his narrowed July 31st requests in accordance with the Public Records Law and its Regulations within ten business days. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Mr. Pontiff may appeal the substantive nature of the City’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jeffrey Pontiff