Hazem Mahmoud, MD, PhD v. Newburyport, City of - Police Department (SPR 20170050)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 19,2017 SPR17/050 Jackie Cowin, Esq. KP Law, P.C. 10 1 Arch Street Boston, MA 02110 Dear Attorney Cowin: I have received the petition of Dr. Hazem Mahmoud, MD, PhD related to his requests for public records made to the City ofNewburyport (City). G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Dr. Mahmoud raises issues concerning a fee estimate and three (3) categories of records. All responsive records In his January 9, 2017 appeal petition, Dr. Mahmoud indicates he paid the fee assessed for the provision of certain records but "[t]o date, Ms. Cowin did not provide the following responsive records, nor did she provide an exemption under the law. , .. "Dr. Mahmoud refers to three (3) categories of records pertaining to voice recordings, police filings in court, and communications with the Office of the Attorney General (AGO). In a letter dated August 1, 2016, the City provided Dr. Mahmoud "all records in the possession of the City's Police Department that are responsive to the above request ...." In an August 23, 2016letter, you explain to Dr. Mahmoud that "[y]ou received all recordings that exist of calls made from your phone number to the Police Department, and all calls made to your number from the Police Department, on August 1, 2016." In a November 22, 2016letter you indicate that on October 31, 2016 Dr. Mahmoud was "provided with all electronic communications responsive to your request that are in the possession of the City's Police Department." Under the Public Records Law, the City is not required to create a list of records or any record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of 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

Jackie Cowin, Esq. SPR17/050 Page 2 January 19, 2017 records at the time of the request. See G. L. c. 4, § 7(26). Whereas the City indicated it provided all responsive records, I will consider this portion of the appeal closed. Fee Estimates Dr. Mahmoud also indicates the fee estimates provided in the City's September 19, 2016 letter contain hourly rates "above the $25/hour, and the two hours search time set by the law. .. ." In its September 19letter, the City provides an itemized fee estimate that is broken down by City department. I understand Dr. Mahmoud paid the fee estimate pertaining to the Police Department and received responsive records. It should be noted that the fee restrictions Dr. Mahmoud refers to went into effect on January 1, 201 7. The fee estimates contained in the September 19 letter pertain to requests made prior to January 1. With respect to communications with the AGO, the City provided Dr. Mahmoud a fee estimate of$85.79 for the provision ofthese records in a letter dated November 16,2016. The fee estimate is comprised of "3 hours for searching and downloading recordings of calls to and from the Attorney General's Office in 2012-13, at $25.00/hour, the hourly rate of the lowest-paid departmental employee who can perform this search, plus one-half hour for searching for letters and e-mails to and from the Attorney General's Office in 2012-13, at $21.87/hour, the rate of the lowest-paid employee who can perform this search." This office found that this fee estimate contained the detail required by the Public Records Access Regulations. See SPR16/1043 Determination ofthe Supervisor of Records (December 7, 2016); SPR16/1216 Determination ofthe Supervisor ofRecords (December 29, 20 16). I decline to reverse this finding. If Dr. Mahmoud is not satisfied with the determination in this matter, this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § lOA (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~t/d){Nc,f) J'ft'tL~AA~ Rebecca S. Murray Supervisor of Records cc: Dr. Hazem Mahmoud