Alycia Kennedy, Esq. v. Newton, City of - Law Department (SPR 20161165)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor ofR ecords December 21, 2016 SPR16/1165 Julie B. Ross, Esq. Assistant City Solicitor City of Newton - Law Department 1000 Commonwealth A venue Newton Centre, MA 02459 Dear Attorney Ross: I have received the petition of Alycia Kennedy, Esq. of Todd & Weld, LLP appealing the response of the City of Newton-Law Department (City) to a request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Howard Cooper, Esq. and Attorney Kennedy requested twenty-one (21) categories ofrecords related to: "The City's 40B hearings and processes; records related to the City's compliance with various state and federal laws, acts and regulations; conflict of law information relative to certain members of the City's Zoning Board of Appeal; and records related to communications involving various elected officials and City Departments." The City provided certain of the records free of charge, as some of the requested records may be found on the City's website. In your October 28 response, you provided Attorney Cooper with the website links so that he could obtain the records. Responses by the City The City provided an October 28 response to the requests, answering each requested item, including providing written, good faith estimates for the costs of providing electronic records, in particular emails. The City has claimed that several of the requests enumerated in Attorney Cooper's letter are unduly burdensome, voluminous, vexatious and intended to harass. The City should be advised that all requests for records, even if overly broad or burdensome must be honored in accordance with the Public Records Law. The City informed Attorney Cooper and Attorney Kennedy that the City has no records responsive to their requests numbered 3, 14 and 17. A record holder's duty to comply with requests for information extends only to those records which exist and are in his custody. See G. 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

Julie B. Ross, Esq. SPR16/1165 Page 2 December 21, 2016 L. c. 4, § 7 (26). There is no obligation to create a record in response to a public records request. G. L. c. 66, § lO(a)_? 32 Op. Att'y Gen. 157, 165 (May 18, 1977). In its October 28 letter the City provided written, good faith estimates for electronic records, such as emails, in answering request numbers 4, 6, 12, 14 and 20. The Total cost of providing the emails that are the subject ofrequests is $121,962.10. The City assessed search time at one hundred twenty dollars ($120.00) per hour for the lowest paid employee in the Information Technology Department (IT). Additionally, the City assessed segregation time at the hourly rate of $46.85 per hour for the lowest paid employee in the Law Department to review and redact any exempt material within the content of the records. A custodian of records may charge for the costs of search, segregation and copies as long as the fees are reasonable and in compliance with the Public Records Law Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). If there are any fees associated with a response a written, good faith estimate must be provided. 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 ($10.00), custodian ofrecords shall provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive records. The Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1)(c). The Regulations define "search time" as the time needed to locate, pull from the file, copy and refile public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § lO(a). A custodian ofrecords may also charge for the cost of copies where the requester has asked to be provided with a copy. Under the Regulations, a custodian of records may assess a maximum fee of five cents ($.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). With regard to Requests 4, 6, 13, 14 and 20, the City estimates that these tasks will take several weeks to complete before the records can be provided to Attorney Kennedy. For example, in response to Request Number 20, the City estimates that it take IT at least six ( 6) weeks to search, and three weeks for the Law Department to segregate exempt material from the records. While the City states that a search for these records would cover a time span of seven years, a time frame of nine (9) weeks or so to complete these tasks, and a cost of $32,270.63 is unreasonable. The total cost of providing the other requested items is also high; Request 4 ($32,270.63), Request 6 ($14,805.00), Request 12 ($5,163.98) and Request 13 ($5,163.98 - manual search of computer records). I find that the City's estimated costs to produce all the electronic correspondence is unreasonable and should be revised.

Julie B. Ross, Esq. SPR16/1165 Page 3 December 21, 2016 By letters dated November 10 and 23, 2016, Attorney Kennedy and Attorney Cooper attempted to set-up a meeting with your office to further clarify its requests and work with the City in providing email "search terms" that might facilitate a more precise, less time consuming search for the responsive records. Furthermore, Attorney Kennedy and Attorney Cooper hoped to have a discussion regarding the City's exemption claims. Your December 1, 2016 letter to Attorney Cooper states that the City disagrees with the positions advanced in the November 10 letter regarding the non-production of certain of the records, and that it is not the practice of City attorneys to hold meeting regarding public records responses. The City also revised its estimate for Request 4 from $32,270.63 to $20,527.51, stating that IT will need to perform a three week (112.5 hours) manual search for emails prior to March 2014. However, the City fails to explain why a manual search is necessary, and specifically how this particular search will be achieved. I still find that even with the revision of the costs to obtain the records in Request 4, the City's estimate as to hourly rates and time to search and segregate is umeasonable. 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, § lO(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). The City has claimed Exemption ( d) and the common law attorney client privilege to withhold certain of the records; however the City has failed to support its exemption claims. The exemptions in the Public Records Law are not blanket in nature. To meet the specificity requirement a custodian must not only cite an exemption, but must also specifically state why the exemption applies to the withheld or redacted portion of the responsive record. The City must provide Attorney Kennedy with a more detailed response regarding the exemption claims. 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.

Julie B. Ross, Esq. SPR16/1165 Page 4 December 21, 2016 The City was provided with not only Attorney Cooper and Attorney Kennedy's request, but also an acknowledgment from this office dated December 12, 2016 providing an appeal number and notice that a public records appeal had been opened by this office. An attorney on my staff also provided the City was a copy of the appeal file. Order I find the City has failed to properly respond to a request for public records. Accordingly, the City is hereby ordered to provide Attorney Kenne\dy with a detailed response concerning the exemptions claimed and revised written, good faith estimate provided 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: Alycia Kennedy, Esq.