Hawkinson, John v. Cambridge, City of - Office of the City Solicitor (SPR 20140068)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 25, 2014 SPR14/068 Mr. Paul S. Kawai, Esq. Assistant City Solicitor City of Cambridge Office of the City Solicitor 795 Massachusetts Avenue Cambridge, MA 02139 Dear Attorney Kawai: I have received a petition from John A. Hawkinson appealing the response by the City of Cambridge (City) to his November 4, 2013 request for public records to the City's Department of Public Works (DPW) and the Transportation Department (Traffic). G. L. c. 66, § 1O (b) (authority of Supervisor of Public Records to resolve public records appeals); see also 950 C.M.R. 32.08(6) (appeals process). Specifically, Mr. Hawkinson requested copies of: Any permits that Traffic, Parking and the Department of Public Works have issued for street and/or sidewalk obstruction, and/or associated diagrams/plans/etc. for 181 Massachusetts Avenue (Novartis) and 300 Massachusetts Avenue (Forest City/Millennium), and be listed tinder 310, 318, 324 and 328 On November 13, 2013, you provided Mr. Hawkinson with a response within ten (10) days that included an estimate for the cost of providing the records. Your estimate stated that the lowest paid employee in the DPW would search for the records, copy and redact any information in the records that contained exempt materials, and return the original documents to their appropriate storage area. The City assessed a total cost of $16.85 for a total of thirty (30) minutes of time and five pages of records at the hourly rate of $31.70 per hour. The City also provided Mr. Hawkinson with an estimate for records held by the Traffic Department. The Traffic Department estimated that they identified approximately three pages of records responsive to the request, and that the lowest paid employee in Traffic searched for, copied and review of any exempt materials, and returned the documents to their appropriate storage area. The total cost ofthe records from Traffic was $7.03, which included ten (10) minutes of time at the hourly rate of$38.60 per hour. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Paul S. Kawai, Esq. SPR14/068 Page Two March 25, 2014 While a custodian may charge for the costs of providing records in accordance with the Public Records Access Regulations, the requester should be advised in writing, within ten (10) days of receipt of the request, of all the tasks that will be undertaken by the custodian and the cost for each of those tasks. The estimated costs must be reasonable and in compliance with the Regulations. I find that the estimate is reasonable. I understand Mr. Hawkinson paid the estimate and received the responsive records. After receipt of your estimate, Mr. Hawkinson asked the DPW, the Traffic Department and the Law Department if he could get further explanation of how the City arrived at the estimated costs, in particular the amount of time that was necessary to search for and compile the records. Your February 24, 2014 letter to an attorney on my staff stated that Mr. Hawkinson only objected to the fee estimate after he paid it and received the records. This has no bearing on whether a requester is entitled to petition this office for an appeal. You stated that Mr. Hawkinson has not alleged that he is entitled to documents other than those that the City provided, and that he appears to be interested in obtaining inforn1ation related to unwritten procedures and oral communications within City Departments. While Mr. Hawkinson did ask whether the City had materials to explain how the City arrived at the estimated costs, he only did so after his inquiries to the DPW and Traffic regarding the fees went unanswered. It is my understanding that the City has no records responsive to Mr. Hawkinson's inquiries. A record holder's duty to comply with requests for information extends only to those records which exist and are in his custody. See G. L. c. 4, § 7 (26). There is no obligation to create a record in response to a public records request. G. L. c. 66, § 10(a); 32 Op. Att'y Gen. 157, 165 (May 18, 1977). This appeal could have been prevented if the City had offered Mr. Hawkinson the courtesy of the explanation you provided to my staff. Accordingly, the City is reminded that part of compliance to a request for public records includes an explanation of fees, even if such explanation is requested after the records are provided. This administrative appeal is closed. 1 ams Supervisor of Records cc: Mr. John Hawkinson