Colman Herman v. Boston, City of - Public Library (SPR 20160333)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. WU!iams Supervisor ofR ecords June 14, 2016 SPR16/333 Ms. Melina Schuler Chief of Communications City of Boston- Public Library 700 Boylston Street Boston, MA 02116 Dear Ms. Schuler: I have received the petition of Colman Herman appealing the response of the City of Boston-Public Library (Library) to a request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Herman requested a copy of all communications including emails, letters, memoranda, faxes and notes between and among the Library, The Catering Affair and WGBH TV regarding the agreement or contract between these parties and between November 10, 2015 and the present. The Library has denied the request for the records pursuant to Exemption (h) of the Public Records Law. Mr. Herman appealed your denial. The Public Records Law 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). 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Ms. Melina Schuler SPR16/333 Page 2 June 14,2016 provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive records. 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 request. Please contact my office directly at the telephone number provided in this determination for further information. Failure to provide a proper estimate In a March 18, 2016 email, you informed Mr. Herman that the Library will provide copies of the approximately 4,700 pages ofrecords at five ($.05) cents per page for an approximate total cost of $235.00. Your estimate also states that preparing the public records request for review has taken at least ten (1 0) hours and required your department to purchase more paper. I find that this response does not meet the requirements of the Public Records Access Regulations (Regulations). A custodian of records may charge for the cost of complying with a public records request, however those costs must be reasonable and in compliance with the Regulations. See 950 C.M.R. 32.06 (fees for copies of public records). In cases where search and segregation time is necessary, a custodian may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1)(c); 950 C.M.R. 32.03. These costs must be detailed in a written, good faith estimate sent to a requester prior to searching, segregating exempt material from the record and copying the record. The Regulations define "search time" as the time needed to locate, pull from the file, copy andre-file public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The costs for search and/or segregation must reflect the actual cost of complying with a particular request. G. L. c. 66, § 10. A custodian may also charge for the cost of copies of public records. Both paper and computer generated copies are five cents ($.05) per page. I find that the Library is in compliance with the cost of copies. The estimate provided by the Library on March 18 fails to provide detail to justify ten (10) hours oftime related to Mr. Herman's request. Therefore, ifthe Library seeks to assess fees allowed by the Regulations it must provide Mr. Herman with a detailed written, good faith estimate without delay.

Ms. Melina Schuler SPR16/333 Page 3 June 14, 2016 Exemption (h) The Library claims that the communications cannot be provided until the contract between the Library, The Catering Affair and WGBH TV has been signed. The Library claims that Exemption (h) of the Public Records Law allows for the withholding of the communications at this time. Exemption (h) proposals and bids to enter into any contract or agreement until the time for the opening of bids in the case of proposals or bids to be opened publicly, and until the time for the receipt of bids or proposals has expired in all other cases; and inter-agency or intra-agency communications made in connection with an evaluation process for reviewing bids or proposals, prior to a decision to enter into negotiations with or to award a contract to, a particular person. G. L. c. 4, § 7 (26) (h) (emphasis added). It is unclear from the Library's response whether any or all records would be withheld at this time. As indicated above, once the bid process is complete records associated with the bids themselves may no longer be withheld pursuant to Exemption (h). Once the bids are open or the bid process concluded certain communications evaluating the bids may be withheld temporarily until "a decision to enter into negotiations." It appears that "a decision to enter into negotiations" has commenced. I find the Library has failed to comply with the specificity requirement of the Public Records Law in that it has not indicated what, if any records are currently available to Mr. Herman. I also find the Library has failed to determine with specificity the applicability of any portion of Exemption (h) to the responsive records to permit withholding. Order Accordingly, the Library is hereby ordered without delay to provide Mr. Herman with a response to his request for public records without delay, prep din a manner consistent with this order, the Public Records Law and its Regulations. A co of any such response must be provided to this office. It is preferable to send an elec on· co y of this response to this office at pre@sec. state.ma. us. cc: Mr. Colman Herman