McKinnon, Anne v. Boston, City of - Public Records (SPR 20260416)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 24, 2026 SPR26/0416 Grace Jung Director of Public Records City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Ms. Jung: I have received the petition of Anne McKinnon appealing the response of the City of Boston (Boston) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 7, 2026, Ms. McKinnon requested the following: Communications that occurred in the period January 1, 2025, through Dec. 31, 2025, concerning the proposed White Stadium project Transportation Access Plan Agreement or TAPA and the “peer review” study by Fort Hill Companies/ Emerald Necklace Conservancy. Specifically, emails, memoranda and marked- up/Track Changes TAPAs involving the following city staff: . . . The City responded on January 30, 2026, provided a fee estimate, and assigned reference number R000075-010726 to this request. Objecting to the fees, Ms. McKinnon petitioned this office, and this appeal, SPR26/0416, 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 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

Grace Jung SPR26/0416 Page 2 February 24, 2026 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. 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 January 30th Fee Estimate In its January 30, 2026 response, the City provides a total fee estimate of $1,848.75, and provides the following information in support of its fee estimate: The City has re-conducted a search of its electronic databases to identify potentially responsive records. This amended search yielded 4,557 records. It is apparent from an initial review that these records contain material that the law requires be redacted or segregated. See G.L. c. 4, § 7(26)(a). For example, these records contain: Privileged attorney-client communications. Records responsive to your request include communications between City attorneys and their clients, as well as communications among City employees about advice provided by their attorneys. This material is protected by the attorney-client privileged and must be segregated and redacted before records could be released. See Suffolk Constr. Co. v. Div. of

Grace Jung SPR26/0416 Page 3 February 24, 2026 Capital Asset Mgmt., 449 Mass. 444, 449-50 (2007). . . . For your request, the City must review all of the records before they can be released. First, the City must compile the responsive records by reviewing all records to determine which are responsive to your request and which are not. Second, the City must redact and segregate the records to ensure material protected by law is not released. In this request, the records contain communications between a City of Boston attorney and employee or a City of Boston employee conveying a City attorney’s legal opinion. Such records must be segregated and redacted for confidential information before they can be released. The City estimates that staff can compile, redact, and segregate approximately one record per minute. At this rate, based on the number of potentially responsive records noted above, the City expects it will take 75.95 hours to compile, redact, and segregate these records. A records custodian must assess the lowest hourly rate of a person capable of performing the task when it issues a fee estimate. 950 CMR 332.07(2)(i). The lowest hourly rate for a person capable of reviewing the records responsive to your request is approximately $25 per hour. At a rate of $25 per hour, accounting for the first two hours without charge, the corresponding cost of fulfilling your request would be $1,848.75. G. L. c. 66, § 10(b) In this case, it is unclear if the City’s response met all the requirements under G. L. c. 66, § 10(b) to assess a fee for the requested records. Pursuant to the law, the written response must be not later than 10 business days after the initial receipt of the request for public records, made via first class or electronic mail and must: (i) confirm receipt of the request; (ii) identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves; (iii) identify the agency or municipality that may be in possession, custody or control of the public record sought, if known; (iv) identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based, provided that nothing in the written response shall limit an agency’s or municipality’s ability to redact or withhold information in accordance with state or federal law; (v) identify any public records, categories of records, or portions of records that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought;

Grace Jung SPR26/0416 Page 4 February 24, 2026 (vi) identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein; (vii) suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably; (viii) include an itemized, good faith estimate of any fees that may be charged to produce the records; and (ix) include a statement informing the requestor of the right of appeal to the supervisor of records under subsection (a) of section 10A and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court under subsection (c) of section 10A. G. L. c. 66, § 10(b). The City is advised in order to assess a fee for the requested records, it must demonstrate it provided a response in compliance with G. L. c. 66, § 10(b). The City must clarify this. Conclusion Accordingly, the City is ordered to provide Ms. McKinnon with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Ms. McKinnon may further appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Anne McKinnon