Ronald P. Matta v. Brockton, City of - Law Department (SPR 20161077)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of Records December 7, 2016 SPR16/1077 Philip C. Nessralla, Jr., Esq. City Solicitor City of Brockton 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." Previous appeals This request was the subject ofthree (3) previous appeals. See SPR16/252 Determination ofthe Supervisor of Records (June 23, 2016) and SPR16/711 Determination ofthe Supervisor of Records (September 19, 2016); SPR16/875 Determination ofthe Supervisor of Records (October 24, 2016). In my October 24 determination I found 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. I ordered the City to provide Mr. Matta with a response to the request, prepared in a manner consistent with the order, the Public Records Law and its Regulations. The City provided a response to the order in a letter dated November 10, 2016 in which it reiterates its fee estimate of $1,783.68 for the provision ofrecords. Mr. Matta informed this office that he objects to this response and seeks further action with respect to this matter. This appeal (SPR16/1 077) was opened as a result. Current appeal Fee estimate 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. SPR16/1077 Page2 December 7, 2016 a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the current Regulations, a custodian of records may assess a maximum fee of five cents ($.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 ). In the City's previous letter dated September 23, 2016, you indicate "[w ]e have determined the total number of emails in this account is 7,618." In the November 10 and September 23 letters, you explain the City is waiving the cost of the time for the Mayor's review to determine "whether the emails involve City business or are strictly personal in nature." This fee was originally estimated at $9,932.45. It should be noted that while the City is claiming to waive this fee, it is not permitted to charge Mr. Matta for the time needed to separate emails involving "City business" from those that are "strictly personal." The City is advised that public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 289-90 (1979). 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. Failure to justifY remaining fee You also explain "[a]ssuming that two-thirds ofthe emails in the Gmail account are strictly personal" the process of segregation will take approximately 42.32 hours for a total cost of$1,783.68. You indicate the remaining fee is based on "1 minute per email for 1/3 ofthe emails at the rate ofthe lowest paid attorney" which is $42.1467 per hour. The City claims attorney review is necessary because "among the exemptions prescribed by the public records laws, are matters deemed sensitive and, about which a clerk in the Clerk's office should not be privy." You cite "attorney-client privilege matters" and "personnel matters" as examples. However, it is unclear why a lower-paid City employee cannot perform the task, for example, a non-attorney employee of the Law Department, under the supervision of an attorney.

Phillip C. Nessralla, Jr., Esq. SPR16/1077 Page 3 December 7, 2016 I find the City's response fails to justify why charging the rate of $42.1467 per hour is necessary for the time to review the responsive records to segregate exempt information from the responsive records. It is also unclear why it would take 42.32 hours to perform the segregation since there is ambiguity surrounding the number of responsive emails as discussed below. Discrepancy in number ofr esponsive records 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). It is unclear how the City determined "that two-thirds of the emails in the Gmail account are strictly personal." In his appeal petition, Mr. Matta indicates his belief that there are "over 17,000 missing emails." The City must clarify this matter and explain why there is a discrepancy in the number of responsive records. I understand an attorney on my staff contacted you about this appeal. 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 pre@sec.state.ma.us. cc: Ron Matta