Davidson, Esq., Patricia v. Everett, City of - Solicitor's Office (SPR 20150151)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 23, 2015 SPR15/151 Mr. David P. Rodrigues, Esq. Office of the City Solicitor - City of Everett Everett City Hall 484 Broadway Everett, MA 02149 Dear Attorney Rodrigues: I have received the petition of Patricia L. Davidson, Esq., of the law firm Mirick, O'Connell, DeMallie & Lougee, LLP, appealing the response of the City of Everett (City) to her request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney Davidson requested eleven categories of records related to the development of a resort casmo. In your response dated November 26, 2014, you stated the City would provide a fee estimate for the provision of records. You also indicated that certain responsive records may fall under exemptions to the Public Records Law. In your January 8, 2015 response, you provided a fee estimate and reiterated the claim that certain records may be exempt. The response from the City includes what appears to be form letter language citing a number of exemptions that might potentially apply to responsive records once those records are reviewed by the City. A custodian of records need not claim an exemption to exclude records from the public until such time as the responsive records have been reviewed. To do so any earlier is strongly discouraged, and may create confusion for the requester. In a letter to this office dated March 23, 2015, you claim that this office should not hear Attorney Davidson's appeal because is untimely. The Public Records Access Regulations (Regulations) state that "[i]n the event that a person requesting any record in the custody of a governmental entity is denied access, or in the event that there has not been compliance with any provision of 950 CMR 32.00, the requester may appeal to the Supervisor within 90 days." 950 C.M.R. 32.08(2). Your letter suggests that, as the date ofthe request precedes the date of the appeal by more than ninety (90) days, the appeal must be denied. A review of the relevant portion of the Regulation above indicates no such restriction. The City's responses are dated November 26,2014 and January 8, 2015; Attorney Davidson's appeal is dated February 10, One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. David P. Rodrigues, Esq. SPR15/151 Page Two June 23,2015 2015. Attorney Davidson's appeal is timely because it is dated within ninety (90) days of both responses. In the same letter, you request this office use its discretion to refuse to open this appeal because the requested records directly relate to matters in active litigation and because Attorney Davidson's request was made solely for commercial purposes. The Supervisor of Records may decline a request to accept an appeal where the records in question are the subject of disputes in active litigation, administrative hearings or mediation or if the request was made solely for commercial purposes. 950 C.M.R. 32.08(2). Upon review I decline to issue such a denial, and will hear Attorney Davidson's appeal. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10 ( c); 950 C.M.R. 32.08(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 town 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(c); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Exemptions The City's responses dated November 26, 2014 and January 8, 2015 both address exemptions in a similar fashion. In these responses, the City cites several exemptions such as Exemptions (a), (b), (c), (d), (e), (f), (i), and the common law attorney-client privilege. In each response, the City states "to the extent responsive documents, or material contained therein, may be withheld under any of the exemptions to the Public Records Law or pursuant to any recognized privilege, including but not limited to the attorney-client privilege, such documents will be withheld and/or material redacted, as appropriate." The City makes a similar claim for each referenced exemption and states that there may be responsive documents that fall within each exemption. The City has not clearly indicated whether the requested records exist and how the exemptions apply to each responsive record. As stated above, a records custodian may not prematurely refuse to provide responsive documents without ascertaining whether the documents exist and specifically explaining to a requester how any portion of records responsive to a public records request are exempt from disclosure.

Mr. David P. Rodrigues, Esq. SPR15/151 Page Three June 23,2015 Fee Estimate A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide a written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Regulations. See 950 C.M.R. 32.06. The Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1)(c). The Regulations define "search time" as the time needed to locate, pull from the file, copy and refile public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § lO(a). The City's response dated January 8, 2015 provides a fee estimate of$4,795.21 for the "initial production" of the responsive records. This estimate is based on search time, copying fees, and additional fees related to consulting "with an outside vendor and counsel for project overview and assessment." With regard to search time, the response provides the various applicable departments, such as "Department of Planning and Development," "Mayor's Office Administrative Clerk," and "Office of the City Solicitor," that will respond to the request. While this response includes total search time and hourly rates, it does not explain whether these are the hourly rates of the lowest paid people capable of performing the task of review. See 950 C.M.R. 32.06(1 )(c). Further, the response provides no explanation to justify the amount of hours needed to complete the task. As it pertains to the "[a]dditional [f]ees," the City states that it is required to load potentially responsive documents into review software to "expedite the review and analyze said documents for privilege, segregation, and/or redaction." You state the initial cost of this program is $2,424.50 along with an additional monthly fee of $511.20. However, the City has not explained with specificity why this program is necessary and why the task cannot be completed by City employees. In addition, if the City chooses to create a tool to assist it in responding to a records request, it may not pass the cost of the creation of this tool to the requester. The program and its monthly fee constitute neither "search" nor "segregation" of public records.

Mr. David P. Rodrigues, Esq. SPR151151 Page Four June 23, 2015 Order Accordingly, whereas the City has not overcome the presumption that the requested records are public, the City is hereby ordered, within ten (1 0) days of this order, to provide Attorney Davidson with the requested records. If the City maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Attorney Davidson a written explanation, with specificity, how a particular exemption applies to each record. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are pai , e City must provide the records. Supervisor of Records cc: Ms. Patricia L. Davidson, Esq.