Maya Shaffer v. City of Chicopee Law Department (SPR 20160375)

The Commonwealth ofMassachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams June 21, 2016 Supervisor ofR ecords SPR16/375 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 § 10(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 ofthe request (March 31, 20 16). Previous appeal This request was the subject of a previous appeal. See SPR16/262 Determination of the Supervisor of Records (May 16, 2016). In my May 16 determination, I found it was unclear whether the nine-thousand (9,000) emails cited in the City's April20, 2016 and April25, 2016 fee estimates included all emails from the email account, or only those that pertain to official City business. I ordered the City to provide Ms. Shaffer with a revised response to the request, prepared in a manner consistent with the order, the Public Records Law and its Access Regulations (Regulations). The City responded to the order in a letter dated May 23, 2016 in which it provided more detail about the fee estimate. Ms. Shaffer informed this office she objects to this response and seeks further action from this office. This appeal (SPR16/262) was opened as a result. 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). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 · Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Christine M. Pikula, Esq. SPR16/375 Page2 June 21, 2016 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). 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. 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). The statutory definition of "public records" does not distinguish between paper records and electronically stored information (ESI). G. L. c. 4, § 7(26). Rather, the law provides that all information made or received by a public entity, regardless of the manner in which it exists, constitutes "public records." A records custodian is obliged to furnish copies of non-exempt portions of computerized information at the cost of reproduction, unless otherwise provided by law. If the email account contains any records that fall within the definition of "public record" any non-exempt, segregable portions thereof, are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also In re Subpoena Duces Tecum, 445 Mass. 685, 687 n. 3 (2006). 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. 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 page for a black and white single or double-sided photocopy of a public record. See 950 C.M.R. 32.06(1)(a).

Ms. Christine M. Pikula, Esq. SPR16/375 Page 3 June 21, 2016 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, § 1O (a). In the May 23 letter you explain "the 9,000 records revealed from the search are all records which pertain to Solicitor Moriarty's official City business with the City of Chicopee." You indicate Solicitor Moriarty's practice is to copy the law department's paralegal or his official City email address when using his private email account in order to facilitate a search for public records. Further, you state "Solicitor Moriarty has confirmed that he has no other records in his possession which correspond to this request." I understand the City waived all costs related to the search for the records. You also explain "a substantial portion of these records are protected by the attorney/client privilege and will need to be either withheld or redacted." Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The City assessed a fee to segregate responsive records. You reiterated that "[t]he City is estimating that it will take approximately 1 hour to segregate 75 emails at the cost of$12.00 an hour to segregate the records." You explain "[t]he breakdown is less than one minute to review each email and the hourly rate is lower than the current lowest paid person capable of performing the task." The City estimates it will take a total of one-hundred twenty (120) hours to provide the records. You also informed Ms. Shaffer the City would provide a revised fee estimate if she would like to narrow her request. Conclusion In light of the City's May 23 letter, I find the City has justified its fee estimate for the provision of the approximately nine-thousand (9,000) responsive records by explaining the number of responsive records and the amount of time needed to segregate them, as well as confirming the City's use of an hourly rate lower than that of the lowest paid person capable of performing the task. Once the fee is paid the records must be prov· ed. If the actual cost of producing the requested records is less than estimated, Ms. Shaffe is to be refunded the difference. See G. L. c. 66, § 10(a). cc: Ms. Maya Shaffer