Mike Beaudet v. Somerville, City of - City Solicitor (SPR 20160254)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Shawn A. Williams Supervisor of Records

April 27, 2016 SPR16/254

Mr. Francis X. Wright, Jr., Esq. City Solicitor

City of Somerville

93 Highland Avenue Somerville, MA 02143

Dear Attorney Wright:

I have received the petition of Mike Beaudet of WCVB Channel 5 appealing the response of the City of Somerville — City Solicitor (City) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Beaudet requested a copy of all internal affairs investigation records regarding a specifically-named police officer. The City provided Mr. Beaudet with a written fee estimate which he appealed.

Written, good faith estimate

The City’s March 24, 2016 estimate assessed the City’s Police Department’s time of eight (8) hours at an hourly rate of fifty-five dollars and seventy-eight cents ($55.78) for a total of $446.24. Mr. Beaudet was also assessed one half hour (1/2 hour) at an hourly rate of forty- one dollars and twenty cents ($41.20) for document review by the City’s Law Department. The estimate states the City will provide copies of responsive records at a cost of five cents ($.05) per page for copies once the number of responsive pages is known. While the total estimated fee is $466.84, your letter demands a check in the amount of $528.64.

Your estimate states that the City intends to redact information which may constitute an unwarranted invasion of privacy, confidential attorney client communications and other matters exempt from disclosure pursuant to the statute. The City cites no specific exemption nor does it explain how any exemption would apply to portions of the records the City intends to omit.

Fees for public records

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

One Ashburton Place, Room 1719, Boston, Massachusetts 02108 - (617) 727-2832 - Fax (617) 727-5914

www.sec.state.ma.us/ pre

Mr. Francis X. Wright, Jr., Esq. SPR16/254 Page 2 April 27, 2016

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). Under the Regulations, a custodian of records may assess a maximum fee of five cents ($.05) per page for a black and white single or double-sided photocopy of a public record. See 950 C.M.R. 32.06(1)(a).

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.LR. 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 costs for search and/or segregation must reflect the actual cost of complying with a particular request. G. L. c. 66, § 10(a).

In a March 28, 2016 email to the City, Mr. Beaudet requested a detailed breakdown of how the City has arrived at eight (8) hours of “search time.” Your March 29 email response explains a “Police Professional Standards Lieutenant estimates that it will require eight (8) hours to find, organize, review (for purposes of determining if there are any on-going investigative matters, any unrelated documents misfiled therewith, and to generally comment as to the content thereof), as well as to otherwise prepare for and copy related materials and re-organize and refile.” You further explained that the Lieutenant “will also confer with his predecessor to confirm as to the materials ... [a]s the materials have not been copied and/or counted we do not know how many pages there will be.”

The City may charge for searching for records, including the time necessary to copy and re-file paper records, however there is no provision in the Regulations that permits the City to charge for “organizing, determining if any documents are misfiled, and commenting on the content thereof.” Please be advised, responding to public records requests is part of the day-to- day business of the City, and a requester cannot be charged for the duties that must be carried out in the normal course of drafting a response or written estimate in responding to a public records request. Furthermore, a requester cannot be charged for the time it takes for the custodian to organize and re-organize its records, nor the time it takes to educate one’s self on the exemptions or other tenets of the Public Records Law. Finally, the City cannot assess any amount of time for “conferring” with other City personnel in responding to a public records request. The City has failed to properly assess “search time” and must revise the amount of time for “search time.” In drafting a revised estimate, I advise the City to review the Regulations for the proper defined terms and use the proper terms for the tasks assessed in the estimate.

Mr. Francis X. Wright, Jr., Esq. SPR16/254 Page 3 April 27, 2016

With regard to your estimate for one half (1/2) hour of time for “segregation,” to review and redact exempt material from the records by the Law Department, I find that this portion of your estimate is reasonable and in compliance with the Public Records Law and Regulations.

Order

Accordingly, the City is hereby ordered, within ten (10) days of this order, to provide Mr. Beaudet with a revised, written good faith estimate, prepared in a manner consistent with this order, the Public Records Law and its Regulations. Once Mr. Beaudet pays the estimate, the City must provide the records. If the City maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Mr. Beaudet a written explanation, with specificity, how a particular exemption applies to each record or each portion 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 estimate and 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.

To assist the City in responding to requests for public records, I advise the City to review our publication, A Guide to the Massachusetts Public Records Law. This document is 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 custodian in person to conduct training workshops on the Public Records Law upgn request. Please contact my office directly at the telephone number below for further in 1

upgrvisor of Records

cc: Mr. Mike Beaudet