John A. Hawkinson v. Cambridge, City of - City Manager's Office (SPR 20160288)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 23,2016 SPR16/288 Mr. Samuel A. Aylesworth, Esq. Office of the City Solicitor City of Cambridge 795 Massachusetts A venue Cambridge, MA 0213 9 Dear Attorney Aylesworth: I have received the petition of John Hawkinson appealing the response of the City of Cambridge (City) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Hawkinson requested "copies of communications/emails sent" to the Open Data Review Board (Board). In a response dated April 7, 2016, you provided a fee estimate of $23.91 for the provision of responsive records. Mr. Hawkinson appealed this response. 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). Fee estimate April 7 response In the City's April 7 response, you explain the fee estimate is comprised of the following: (1) 0.25 hours to "search for and collect the responsive documents" at an hourly rate of $41.00; (2) 0.25 hours to "review and redact the above documents for any information exempt under the OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Samuel A. Aylesworth, Esq. SPR16/288 Page 2 May 23,2016 Public Records Law" at an hourly rate of$48.69; (3) $1.00 for copies ofresponsive records at $0.05 per page; and (4) $0.49 for the cost to mail the records. In his appeal petition, Mr. Hawkinson indicates he is not appealing the reasonableness of the dollar amount of the fee estimate; instead, he seeks an order requiring "the City's disclosure of information that will allow [Mr. Hawkinson] to understand the City's estimate." In particular, Mr. Hawkinson seeks clarification from the City about the estimated time to search for and redact responsive records as well as the lowest paid person capable of performing the task. 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 ($1 0.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the current Regulations, a custodian of records may assess a maximum fee of five cents ($.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). ' 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). May 13 response The City provided an additional response to Mr. Hawkinson in a letter dated May 13, 2016. In this response you explain "the only means by which the City can determine whether a document or information contained in a document is exempt is by conducting a careful review of the sought-after records." Further, you explain "the City has not had the opportunity to conduct any meaningful legal review of the types communications/emails that may have been received by the members of the Board" and indicate it is unclear whether these communications contain information exempt from disclosure. The City also explains "[t]he City's determination of the lowest-paid person capable of conducting the search was based on the unique position the designated staff member had in relation to the Board" and that person's "knowledge of the matters before the Board supported

Mr. Samuel A. Aylesworth, Esq. SPR16/288 Page 3 May 23,2016 the City's determination of which staff member would conduct the search for the documents that may be responsive" to Mr. Hawkinson's request. Conclusion Whereas Mr. Hawkinson's appeal sought additional information regarding the City's fee estimate and further whereas the City provided a supplemental response on May 13, I will consider this appeal closed. To assist in requesting and responding to requests for public records please refer to 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 quest. Please contact my office directly at the telephone number provided in this deter · for further information. cc: Mr. John Hawkinson