Hawkinson, John v. Cambridge, City of - Office of the City Solicitor (SPR 20150419)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 1, 2015 SPRlS/419 Ms. Anne M. Sterman, Esq. Assistant City Solicitor City of Cambridge Office of the City Solicitor 795 Massachusetts Avenue Cambridge, MA 0213 9 Dear Attorney Sterman: I have received the petition of John Hawkinson appealing the response of City of Cambridge (City) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, by email on April24, 2015 Mr. Hawkinson requested an electronic copy (where available) of: I. Any reports the City prepared on variances in response to Council Order 15.07 subsequent to the report dated March 4, 2015 from Commissioner Singanayagam to Manager Rossi, not including the spreadsheet furnished by the Commissioner on March 30. "I understand the City has drafted a more detailed report that covers some of these issues, and I'd like to see it assuming that is feasible." II. The database schema or record layout of variances within the EnerGov database, including the data dictionary. In particular, tables and fields of data including a description of the meanings of each table and field in the database, and III. The actual data associated with variances applied for from 2010 to present for all fields referenced in the April 24 request letter supplied in a CSV file (one for each table), as an Excel spreadsheet, in a standard open database format, as tab delimited text, or a variety of other ways. This can be a result of an SQL query that joins the tables, or it can be raw data tables themselves. On April30 the City provided records responsive to Mr. Hawkinson's request number I, and on May 4 you wrote Mr. Hawkinson to inform him that the City is taking longer than anticipated to review his requests numbered II and III, and to estimate the costs associated with providing the information. On May 6, you provided a written estimate for request number III OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Anne M. Sterman, Esq. SPR15/419 Page Two December 1, 2015 and a response to request number II denying the request under Exemptions (a) and (n) of the Public Records Law. Your estimate states that Mr. Hawkinson will be provided with the records responsive to request number III at a cost of $863.67 which includes fifteen to twenty hours at $51.09 per hour to conduct search and segregation of the relevant information. You also estimate that complying with Mr. Hawkinson's request will require two to three hours of attorney time to review and, if necessary, redact the documents that result from the searches at $48.81 per hour. While the City states that the hourly rates are the lowest paid employee's capable, neither the estimate nor the response explain the need for legal review. Mr. Hawkinson has appealed the amount of time to search for the records, and the amount of time for "segregation" (redaction of certain data). Fees 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 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 Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). In addition to the copying fee, 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, § 10(a). I find that the City has failed to explain why a search will take 15-20 hours, and why an attorney is necessary to segregate any exempt information from the data tables and fields from the variance database EnerGov. 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 District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption).

Ms. Anne M. Sterman, Esq. SPR15/419 Page Three December 1, 2015 Exemptions (a) and (n) The City's May 6, June 24 and October 9, 2015 responses cite Exemptions (a) and (n) as applicable to withhold the data dictionary and the data fields and tables in the variance application system, EnerGov. The City posits that the information is protected as proprietary information that constitutes trade secrets belonging to Tyler Technologies, Inc. (Tyler), the company that owns the EnerGov software. The City claims that Tyler confirmed that the City is not authorized nor does Tyler consent to the release by the City of the data diagram and dictionary. In your October 9, 2015 letter to this office, you state that Tyler informed the City that it vigorously monitors against the public disclosure of its trade secrets, because public disclosure of that information, including the potential that such disclosure will go to Tyler's competitors, threatens the value of Tyler's investments and its competitive position in the marketplace. Therefore, Exemption (a) merits consideration. It allows withholding ofthose records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26) (a) The City claims that the statute that operates through Exemption (a) is G. L. c. 93 § 42A which provides that a party can seek injunctive relief to prevent another party from taking or using a trade secret. Moreover, the City states that trade secret misappropriation can also give rise to civil liability under G. L. c. 93A, as well as criminal liability under G. L. c. 266, § 30. I find that the City has not provided information to satisfy the burden that the cited statutes relate to disclosure of public, government records. Accordingly, I find the City has failed to satisfy this burden. Exemption (n) The City also cites Exemption (n) to withhold the data tables, fields and dictionary for the EnerGov database. Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (b) of section 10 of chapter 66, is likely to jeopardize public safety. G. L. c. 4, §7 (26) (n)

Ms. Anne M. Sterman, Esq. SPR15/419 Page Four December 1, 2015 Exemption (n) allows for the withholding of certain records which if released would undermine public safety. It is the duty ofthe custodian of records to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety. Given the unique statutory construction of Exemption (n), records released to a particular individual through this exemption need not be released to all subsequent requestors. The City claims that releasing the information will jeopardize the City's information technology security because it would provide a data roadmap for anyone who breached the City's firewall. You state, "[i]t is akin to providing a blueprint of the interior of a banlc-that blueprint would not enable a person to enter the banlc building, but once inside, the blueprint would assist an intruder in locating and accessing the bank's safe. The City cannot jeopardize the security of its information infrastructure by providing the requested information to the public." Your October 9 letter seems to suggest that the fact that Mr. Hawkinson may post the database fields and data dictionary (explanation of database terms) jeopardizes the public's safety because members of the general public would have access to the information provided to Mr. Hawkinson as a freelance journalist. The City has provided no information to support its claim that release of a list of the names of each database table and fields along with the descriptions of the meanings of those tables and fields will trigger a breach of the City's information technology systems. Nor has the City supported its conclusion that disclosure of the information will result in jeopardizing the safety ofthe public at large. Conclusion I find the City has not overcome the presumption that the records responsive to Request II are public. Further, I find that the City has not met its burden to justifY the fees associated with Request III. Accordingly, the City is hereby ordered, within ten (10) days ofthis order, to provide Mr. Hawkinson with a revised written response prepared in compliance with this order, the Public Records Law and its Regulations. If the City maintains that any portion of the responsive records are exempt from disclosure it must provide to Mr. Hawkinson a written explanation, with specificity, how a particular exemption applies t each record. To meet the specificity requirement a custodian must not only cite an exempti , but must also state why the exemption applies to the withheld or redacted portion of the resp sive record. A copy of any such response must be provided to this office. It is preferable t s nd an electronic copy of this response to this office at pre@sec.state.ma.us. cc: Mr. John Hawkinson