John Stillwaggon v. Boston Public Health Commission (SPR 20252783)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 29, 2025 SPR25/2783 Javier R. Salas, Esq. Assistant General Counsel Boston Public Health Commission 1010 Massachusetts Avenue, 6th Floor Boston, MA 02118 Dear Attorney Salas: On September 22, 2025, this office received your petition on behalf of the Boston Public Health Commission (Commission/BPHC) seeking an extension of time to produce records, permission to charge for time spent segregating or redacting responsive 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 Commission furnished a copy of the petition to the requestor, John Stillwaggon. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On September 6, 2025, Mr. Stillwaggon requested “[a] machine-readable list of all Boston Public Health Commission (BPHC) employees for calendar years 2023, 2024, and 2025 (to date), including: Full name[;] Position/title[;] Department/ division[;] Base salary[;] Gross annual earnings (actual paid)[;] Overtime and other additional earnings (if separately tracked)[.]” 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; 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. SPR25/2783 Page 2 September 29, 2025 (v) whether the request, either individually or as part of a series of requests from the same 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 Commission requests “an extension of time to respond by that Monday, October 20, 2025.” In support of its petition, the Commission provides the following information: In addition to the efforts described above, the magnitude of the additional request to conduct additional searches would burden the other responsibilities of BPHC’s staff, such that BPHC would be unable to complete the request within the time provided under Massachusetts Public Records Law. Specifically, BPHC staff (Human Resource) are working on prior projects / request while addressing quarter end adjustments and contract changes, which would interrupt their capacity or the normal business hours of operation of the BPHC to produc[e] the request without the extension. In light of the need to collect, segregate and examine the records, as well as the capacity of the Commission to produce the records without an extension, the Commission has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The Commission is granted an extension of 15 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 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

Javier R. Salas, Esq. SPR25/2783 Page 3 September 29, 2025 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). 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; 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). Petition to Assess Fees In its petition, the Commission requests permission to charge fees for segregation and redaction of the responsive records and argues the following in support of its request:

Javier R. Salas, Esq. SPR25/2783 Page 4 September 29, 2025 Based on software limitations, the last two categories listed will require staff to run additional and independent searches (depending on what specific information is required) to search for and produce the specific data requested. Specifically, the BPHC will need to run at least three (3) independent searches for all BPHC employees’ (around 1400) individual: 1) gross annual earnings; 2) Overtime pay; and 3) other additional earnings. BPHC makes a good faith estimation that these additional and independent searches will take an additional four (4) hours of staff efforts to pull this data. As such, BPHC estimates that it will take a total of six (6) hours of work to search for and segregate the responsive records. In BPHC’s email, a modification suggestion was offered to remove the last two categories listed or limit it to only seeking information regarding Overtime to enable the BPHC to produce the records sought more efficiently and affordably. I find the Commission has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Consequently, permission to charge for segregation and redaction not required by law cannot be granted. Fees in Excess of $25.00 per Hour In its petition, the Commission requests to “waive statutory limits to fees pursuant to 950 C.M.R. 32.06(4)(g)” and states “[a]s such, the estimated cost of complying with Mr. Stillwaggon’s request is 4 hours of chargeable work at $25.00 per hour, or $100.00.” Where the Commission only seeks to assess fees at a rate of $25 per hour, I find it is unnecessary to opine on the Commission request to charge fees in excess of $25 per hour. Conclusion Accordingly, I find the Commission has established good cause for a time extension of 15 business days as described above. However, I find the Commission has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Further, it is unnecessary to opine on the Commission’s request for a waiver of statutory limits. I encourage Mr. Stillwaggon and the Commission to continue to communicate directly in order to facilitate producing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). Mr. Stillwaggon may appeal the Commission’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Mr. Stillwaggon 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).

Javier R. Salas, Esq. SPR25/2783 Page 5 September 29, 2025 Sincerely, Manza Arthur Supervisor of Records cc: John Stillwaggon