Ronald P. Matta v. Brockton, City of - Office of the Mayor (SPR 20160875)

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

Shawn A. Williams Supervisor of Records

October 24, 2016 SPR16/875

Phillip C. Nessralla, Jr., Esq. City of Brockton

Office of the Mayor

45 School Street

Brockton, MA 02301

Dear Attorney Nessralla:

I have received the petition of Ron Matta appealing the response of the City of Brockton (City) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Matta requested copies “sent and received emails from the email account Mayorbillcarpenter@gmail.com”. This request was the subject of two (2) previous appeals. See SPR16/252 Determination of the Supervisor of Records (June 23, 2016) and SPR16/711 Determination of the Supervisor of Records (September 19, 2016).

Current appeal

In a response to my September 19 order, (SPR16/711) the City provided Mr. Matta with a revised fee estimate for the provision of the responsive records, The basis of Mr. Matta’s appeal is the reasonableness of this fee estimate.

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.

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

One Ashburton Place, Room 1719, Boston, Massachusetts 02108 * (617) 727-2832¢ Fax: (617) 727-5914 sec.state.ma.us/pre * pre@sec.state.ma.us

Phillip C. Nessralla, Jr., Esq. ~ SPR16/875 Page 2 October 24, 2016

a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate), Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of twenty cents ($.20) per page for a photocopy of a public record and fifty cents ($.50) per page for a computer printout 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).

In the City’s September 23 letter it is clear that the responsive records, while technically the property of the City, are, in the physical custody of the Mayor. The City 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 vy. Police Commissioner of Boston, 378 Mass. 281, 289-90 (1979). Each municipal or governmental entity or agency shall have a designated “records custodian.” The City clerk shall serve as records custodian unless a particular board or committee appoints an individual who shall be in charge of maintaining, storing and keeping the public records of such agency or entity by local by-law or ordinance. G, L. c. 66, § 7. Whenever original public records are created outside the municipal offices, they shall be transferred on a regular and frequent basis to secure storage in the municipal building.

The City’s September 23 fee estimate fails to provide justification charging the Mayor’s hourly rate per hour for search and segregation for records that should already be in the custody of the City. The City’s letter, while detailed, fails in this regard. The City’s response also fails © to justify why it would require an attorney to segregate exempt information from the responsive records or why it would take 42.32 hours to do so. Given that the City Clerk is statutorily designated as the custodian of the requested records, the fee for search or segregation should be __ based on the hourly rate of the lowest paid employee at the Clerk’s office who is capable of performing the task.

The City is hereby advised that should it intend to redact or withhold any information contained in the responsive records that the Public Records Law states, “the burden shall be upon the custodian to prove with specificity the exemption which applies.” G, L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) Accordingly, to comply with the Public Records Law and its Regulations the City must provide specificity with respect to any denial of access to public records. This requires a records

Phillip C. Nessralla, Jr., Esq. SPR16/875 - Page 3 October 24, 2016

custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records.

I find the City has failed to meet its burden of responding to this records request under the Public Records Law. The City’s response did not contain the detail required for a fee estimate and did not contain the specificity required for the denial of access to public records.

~ Order

Accordingly, the City is hereby ordered to provide Mr. Matta with a response to the request, prepared in a manner consistent with this order, the Public Records Law and its Regulations. 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 re@sec.Ahate ma.us,

upeyvisor of Records

cc; Ron Matta