Brian McCarter v. Boston Public Health Commission (SPR 20252312)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 14, 2025 SPR25/2312 Javier R. Salas, Esq. Assistant General Counsel Boston Public Health Commission 1010 Massachusetts Avenue, 6th Floor Boston, MA 02118 Dear Attorney Salas: On August 8, 2025, this office received your petition on behalf of the Boston Public Health Commission (Commission) seeking permission to charge for time spent segregating or 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 Commission furnished a copy of the petition to the requestor, Brian McCarter. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On July 27, 2025, Mr. McCarter requested “a copy of any logs, spreadsheets, or databases maintained by your office that track public records requests received, including [d]ate of request[;] [r]equester name[;] [s]ummary or description of request[;] [r]esponse date[;] [d]isposition (granted, denied, etc.)[;] [f]ee charged, if any[.]” Please note that in two emails to this Office on August 11 and August 12, 2025, Mr. McCarter objected to the Commission’s petition. 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). 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

Javier R. Salas, Esq. SPR25/2312 Page 2 August 14, 2025 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 Petition In its petition, in addition to charging for segregation and redaction required by law pursuant to Exemption (a) of the Public Records Law, the Commission argues the following in support of its request to charge for segregation and redaction under Exemption (c): [T]he requested record is likely to contain “personnel and medical files or information” and “any other materials or data relating to a specifically named

Javier R. Salas, Esq. SPR25/2312 Page 3 August 14, 2025 individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” M.G.L. c. 4, § 7(26)(c). Here, the responsive record will contain information about named individuals, their contact information, and sensitive and personal information, which, if made public, would result in personal embarrassment to the named individuals. These are highly personal details including, but not limited to, medical files, accident reports, treatment records, demographic information, client records, and personnel files, that are not otherwise available from other sources. Therefore, redaction is appropriate under Exemption (c). Based on the information provided in its fee petition, I find the Commission has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without segregation or redaction. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, I find the Commission has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Commission may assess a fee for segregation and redaction. Mr. McCarter is advised that he may appeal the Commission’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Mr. McCarter 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: Brian McCarter