Jessica Machado v. Fall River, City of - Office of the City Clerk (SPR 20253011)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 17, 2025 SPR25/3011 Kenneth E. Fredette, Esq. Assistant Corporation Counsel City of Fall River 1 Government Center Fall River, MA 02722 Dear Attorney Fredette: On October 14, 2025, this office received your petitions on behalf of the City of Fall River (City) 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 City furnished a copy of the petitions to the requestor, Jessica Machado. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). In two separate requests on August 13, 2025, Ms. Machado requested the following records from July 1, 2025 to July 31, 2025: [1] [A]ll emails between [identified individuals]…This includes all emails from … to … and those from … to … [;] [2] [A]ll email correspondence between [identified individuals]… [;] Following communication with the City, on September 30, 2025, Ms. Machado replaced each of her requests. Please note that in an email to the City and this Office on October 15, 2025, Ms. Machado objected to the City’s petition. 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: 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

Kenneth E. Fredette, Esq. SPR25/3011 Page 2 October 17, 2025 (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; (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 City requests an extension of 30 business days and argues for following in support of its request: The first requests were responded to by myself in July by obtaining printouts of emails sent directly from the parties to each other. An attempt to deliver these “hard” copies to Ms. Machado within a few days of her requests failed when they were mistakenly sent to a wrong email address. A second attempt to contact Ms. Machado also failed, partly due to the fact that the emails were not “kicked back” to me. When notified of my error I provided the printed emails to Ms. Machado. Ms. Machado was not charged any fee for these records. … the Director of IT, has reported that the requests for emails, without limitation or restriction on content, total 1645 emails for the month of July. In light of the need to collect, segregate and examine the records, the City has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The City is granted an extension of 30 business days.

Kenneth E. Fredette, Esq. SPR25/3011 Page 3 October 17, 2025 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 $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my understanding that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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).

Kenneth E. Fredette, Esq. SPR25/3011 Page 4 October 17, 2025 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 City requests “requests permission to charge for time spent reviewing, segregating or redacting responsive records under G. L. c. 66 § l0(d)(iv)” and provides the following information in support of its request: [The] Director of IT, has reported the results of a search for all emails that fit the criteria of Ms. Machado’s request for the month of July, 2025. A total of 1645 items were located during a search that took several hours to complete. The next steps for completion toward compliance would be the exporting and downloading of the 1645 items followed by review by myself along with identified individuals to ensure proper release of non-exempted or privileged information. I find the City 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 City requests to charge a fee of $60.00 per hour, and provides the following in support of its request: [An identified individual] estimates that the exports of four files containing the 1645 files identified will take 2-3 additional hours for the collections to be completed. This task can only be completed by himself as no lesser-paid employees in IT have access, knowledge and experience to successfully obtain the records sought: Access to the Compliance portal is limited to ensure data retention and compliance settings are managed securely with adherence to state and municipal regulation. The portal contains highly sensitive data and controls that could result in data loss or noncompliance. I am the only staff member who has had specific training in data governance and security (CompTIA A+ and Security+) as well as my background working with high security systems with previous employment. Due to this access restriction, I am also currently the only staff member proficient in use with the portal. … [The] Director of IT, is paid over $60.00 an hour. Following the exports of the emails, I, as assistant corporation counsel and the RAO to the City of Fall River, would be required to review the emails with each

Kenneth E. Fredette, Esq. SPR25/3011 Page 5 October 17, 2025 of the senders/recipients described herein. Given the sheer number of emails to review, it is estimated that such a task will take 12-15 hours in total. My hourly pay rate is over $60.00 an hour. There is no lesser-paid employee in the Office of Corporation Counsel that has the experience and knowledge to undertake the task of reviewing the large volume of records sought. In light of the City’s petition, I find the City has not met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, I find the City has established good cause for a time extension of 30 business days as described above. However, I find the City has not met its burden to assess a fee for segregation and redaction not required by law or assess a fee in excess of $25.00 per hour. Please note that this determination does not preclude the City from charging for segregation and redaction that is required by law under Exemption (a) at a rate of $25.00 per hour. Ms. Machado is advised that she may appeal the City’s response to her requests within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jessica Machado