Maya Shaffer v. City of Chicopee Law Department (SPR 20160262)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division May 16,2016 SPR16/262 Ms. Christine Pikula, Esq. Associate City Solicitor City of Chicopee - Law Department City Hall - Market Square 17 Springfield Street Chicopee, MA 01013-2776 Dear Attorney Pikula: I have received the petition of Maya Shaffer of the Baystate Examiner appealing the response of the City of Chicopee -Law Department (City) to a request for public records. G. L. c. 66 § 1 O(b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Shaffer requested a copy of all emails to and from mmoriarty@moriarty-lawfirm.com from January 2015 through the date of request. The City provided a written fee estimate on April20, 2016. Ms. Shaffer appealed the estimate. Failure to timely respond The City provided Ms. Shaffer a written acknowledgment of her request; a substantive response was provided twenty (20) days after the request. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days ofthe request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. The City is reminded that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. 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 ($10.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of five cents ($.05) per OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Christine M. Pikula, Esq. SPR16/262 Page2 May 16,2016 page for a black and white single or double-sided photocopy of a public record. See 950 C.M.R. 32.06(1 )(a). ----Itradditietrt<.r the~~fee;~Regttlati~provide thatirrcaseswherensearch Dr 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). In an April25, 2016 telephone conversation an attorney on my staff was informed that the City's Information Technology Department searched for records responsive to Ms. Shaffer's request, resulting in approximately 9,000 emails. In its April20 response the City provided an estimate for the review and redaction of the responsive emails. During an April25, 2016 telephone conversation you explained to an attorney on my staff that the costs in the written estimate provided are for segregation of the records, as the fees for searching were waived. In a letter dated April25, 2016, you provided Ms. Shaffer a supplemental response to the request in which you explain "a substantial portion of these records are protected by the attorney/client privilege and will need to be either withheld or redacted." You cite Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007) to support this position. You reiterated that "[t]he City is estimating that it will take approximately 1 hour to review 75 emails at the cost of $12.00 an hour to segregate the records." You explain this hourly rate is less than the rate of the person capable of performing the task. The City is advised that the only emails responsive to this request under the Public Records Law would be those related to Attorney Moriarty's official business with the City. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976) (access to a record requested pursuant to the Public Records Law rests on the content of the record). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, created or received by any officer or employee of any town of the Commonwealth to serve a public purpose, unless falling within a statutory exemption. G. L. c. 4, § 7(26). Based on the City's responses, it is unclear whether the 9,000 emails cited in the City's fee estimate include all emails from the email account, or only those that pertain to official City business. Therefore, it is unclear ifthe actual number of responsive records is less than 9,000. The Town is advised that public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10 ( a); see also Reinstein v. Police Commissioner of Boston, 3 78 Mass. 281, 289-90 (1979).

Ms. Christine M. Pikula, Esq. SPR16/262 Page 3 May 16,2016 Order Accordingly, the City is hereby ordered, within ten (10) days ofthis order, to provide Ms. Shaffer with a revised responsetotherequest;~preparedirr crmanner cunsistent with this order; the Public Records Law and its Regulations. If the City maintains that any responsive records are exempt from disclosure it must, within ten (1 0) days provide to Ms. Shaffer 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. To assist 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 upon request. In a recent letter to this office you expressed interest i providing additional training on the Public Records Law, records management and records ret ntion to members of the Law Department staff. My staff will contact you to schedule such raining. Please contact my office directly at the telephone number provided in this dete · ati for further information. cc: Ms. Maya Shaffer