Jon Fetherston v. Executive Office of Housing and Livable Communities (SPR 20252939)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 10, 2025 SPR25/2939 Adrian Walleigh, Esq. Counsel and Records Access Officer Executive Office of Housing and Livable Communities 100 Cambridge Street, Suite 300 Boston, MA 02114 Dear Attorney Walleigh: On October 7, 2025, this office received your petition on behalf of the Executive Office of Housing and Livable Communities (Office) requesting permission to assess fees for time spent segregating and redacting responsive records. 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 Office furnished a copy of the petition to the requestor, Jon Fetherston. G. L. c. 66, § 10(d)(iv)(2). On September 22, 2025, Mr. Fetherston requested “[a]ll copies of any agreements and invoices regarding all of the migrant hotels in Massachusetts from July 1, 2023 till September 22, 2025.” Petition to Assess Fees – Agencies A fee shall not assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records (Supervisor) under a petition. G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). 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). 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. 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

Adrian Walleigh, Esq. SPR25/2939 Page 2 October 10, 2025 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies 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. Current Petition In its petition, the Office requests “[a]pproval to assess a fee of up to $875.00 for costs associated with responding to a public records request from Jon Fetherston (“Requestor”), received September 22, 2025, and attached hereto.” In support of its request, the Office provides the following information: [EOHLC] conducted a search and identified approximately 1,558 documents responsive to this request. [A] number of these responsive documents will contain potentially privileged materials and materials exempt from disclosure under the Public Records Law and other statutes, including without limitation, G.L. c. 4, § 7(26)(c), and attorney-client privilege. The documents requested contain or may contain personal identifying information, such as non-public mailing addresses, social security numbers, email addresses, phone numbers, dates of birth, and other information that is exempt from disclosure pursuant to the privacy exemption.

Adrian Walleigh, Esq. SPR25/2939 Page 3 October 10, 2025 Conclusion The Office submitted its petition on October 7, 2025, more than ten business days after receipt of the request. In light of the fact that the Office has not demonstrated that it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records cannot be granted. 950 C.M.R. 32.06(4)(g). Sincerely, Manza Arthur Supervisor of Records cc: Jon Fetherston