Susan C. Phillips v. City of Chicopee Law Department (SPR 20170047)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 23, 2017 SPR17/047 Matthew Szafranski Chicopee Law Department City Hall, Market Square 17 Springfield Street Chicopee, MA 01013-2776 Dear Mr. Szafranski: I have received the petition of Susan Phillips appealing the response of the Newton Law Department (Department) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Ms. Phillips requested a copy of a specified agreement and "any other record which references this agreement and payments to any party from the council approved settlement amount." Previous appeal This request was the subject of a previous appeal. See SPR 16/966 Determination of the Supervisor ofRecords (November 10, 2016). This appeal was closed with the determination that the Department must provide Ms. Phillips with a revised fee estimate. This response was provided in a November 16, 2016letter. Subsequent to the provision ofthis estimate, Ms. Phillips petitioned this office for further assistance and this appeal (SPR17 /04 7) was opened. 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 defmed 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 Dist. Attorney for the Norfolk ~st. 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 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

Matthew Szafranski SPR17/047 Page 2 January 23, 2017 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, § lO(a); see also 950 C.M.R. 32.06(2) (where cost of complying 111rith a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide vvritten 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:I/171-'Vvw.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. Current appeal November 16, 2016 response In your November 16, 2016 response you explained that the Department was no longer claiming Exemption (d) as deliberation in tllis matter had ended and the agreements have been signed. You also noted that the agreements were provided to Ms. Phillips on November 4, 2016. However, the Department still intends to review other responsive records for any attorney/client privilege material. You provided Ms. Phillips with a revised fee estimate for the provision of these records. Fee estinwte 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 a request for public records is expected to exceed ten dollars ($1 0.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of five cents ($.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). 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 ofthe lov,rest paid employee who is capable of performing the task. 950 C.M.R.

Matthew Szafranski SPR17/047 Page3 January 23, 2017 32.06(l)(c). The Regulations define "search times" 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 Department's November 16, 2016letter, you indicate that "[t]he city has found at least 3000 email records responsive to your request." You note that the Department is charging $12.00 per hour, "which is less than the rate for the lowest paid employee capable of perfonning the work," and that "the city estimates it can review 75 emails an hour." You explain that "the city estimates it will cost $480 to perform this work," which is $120.00 less than the original estimate of $600.00. Appeal petition In her January 3, 2017 letter of appeal, Ms. Phillips expresses concern that the responsive emails are intermingled with personal emails, and that she is "being charged for their segregation from ... private matters." It should be noted that the Department is not permitted to charge Ms. Phillips for the time needed to separate emails involving Department business from those that are related to "private matters." The Depa1iment 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, § lO(a); see also Reinstein v. Police Comm'r ofBoston, 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. The Department must clarify whether the fee estimate includes time to segregate "Department business" emails from "private matters." I understand an attorney on my staff contacted your office about this appeal. Conclusion Accordingly, the Department is hereby ordered to provide Ms. Phillips with a revised response, prepared in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) business days. 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(cl(sec. state .rna. us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Susan C. Phillips