Christie Hynds v. City of Newton -- City Solicitor (SPR 20160005)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor ofR ecords January 29, 2016 SPR16/005 Ms. Julie B. Ross, Esq. Assistant City Solicitor City ofNewton 10 00 Commonwealth A venue Newton Centre, MA 02459 Dear Attorney Ross: I have received the petition of Christie Hynds appealing the response of the City of Newton (City) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, on December 8, 2015, Ms. Hynds requested two categories ofrecords, each related to written communications between the City's Department of Public Works (DPW) employees and another "related to the driveway, sidewalk or driveway apron at 61 Chaske Avenue in Newton, excluding records generated by Newton 311." The Office of the City Solicitor provided Ms. Hynds with a written estimate of $2389.35 for an attorney, at a rate of $46.85 per hour to review the responsive records prior to production. Ms. Hynds appealed this estimate, stating that the City had met its burden to justify attorney review. Fees A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 1O (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). 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 re-file 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, § 1O (a). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Julie B. Ross, Esq. SPR16/005 Page 2 January 29, 2016 December 16 estimate fails to justify $46.85 hourly rate to review public records The Law Department's December 16 written estimate states that a search by the City's Information Technology Department has yielded approximately 1552 potentially responsive records. The response further states "records [the Law Department has] identified as being responsive to [Ms. Hynds'] request may necessarily contain documents that fall into one of the many exceptions to the Public Records Law. For this reason [you] have determined that the lowest paid employee capable of reviewing the records for responsiveness is an attorney within the Law Department." The estimate states fifty-one (51) hours of review, "approximately 2 minutes to review each record," at an hourly rate of forty-six dollars and eighty-five cents ($46.85) per hour for a total cost of$2,389.35. The letter contains no furtherexplanation as to why no other City staff member, either from the Law Department or the Inspectional Services Department would be unable to perform the segregation task, even with supervision by an attorney prior to disclosure. There is no provision in the Public Records Law or its Regulations that mandates segregation to be performed by an attorney. A records custodian must justify why a particular hourly rate is that of the lowest paid person capable of performing the task of review. In January 21 and 25, 20 16 telephone discussions an attorney on my staff suggested to you that the City revise its estimate in a manner consistent with the Public Records Law and its Regulations in an effort to resolve this administrative appeal. It is my understanding you declined this request. Order I find the City and the Law Department have failed to justify why no one other than an attorney is capable of reviewing the responsive records. Accordingly, the City is hereby ordered, within ten (1 0) days of this order, to provide Ms. Hynds with a revised written, good faith estimate prepared in a manner consistent with this order, the Public Records Law and its Regulations. If the City maintains that any portion ofthe responsive records are exempt from disclosure it must, within ten (1 0) days provide to Ms. Hynds a written explanation, with specificity, how a particular exemption applies to each record or portions of a 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. Once the fees are paid, you must provide the responsive records. To assist the City in responding to requests for public records I have enclosed a copy of our publication, A Guide to the Massachusetts Public Records Law. This document is also available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records

Ms. Julie B. Ross, Esq. SPR16/005 Page 3 January 29, 2016 custodian in person to conduct training workshops on the Pub i Records Law upon request. Please contact my office directly at the telephone number bel for further information. cc: Ms. Christie Hynds