John A. Hawkinson v. Cambridge, City of - Office of the City Solicitor (SPR 20170448)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 16, 2017 Paul S. Kawai, Esq. City of Cambridge Office of the City Solicitor 795 Massachusetts A venue Cambridge, MA 02139 Dear Attorney Kawai: I have received your petition requesting to charge for time spent segregating or redacting public records in responding to a request made by John Hawkinson. G. L. c. 66, § lO(d)(iv). Mr. Hawkinson requested records related to the rollout of the City's new proposed website from October 1, 2016 to present. As required by law, the City furnished a copy of this petition to the requester. G. L. c. 66, § 10(d )(iv)(2). The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § lO(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § lO(d)(iv). Analysis The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality's petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § lO(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the 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

Paul S. Kawai, Esq. Page 2 March 16, 2017 redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § IO(d)(iv). Current petition The City's current petition dated March 8, 2017 is related to its previous petition dated February 7, 2017. In a determination dated February 14, 2017 I declined to opine on that petition in light of the parties' willingness to attempt to narrow the request. I understand Mr. Hawkinson narrowed his request in correspondence dated February 21, 2017 in which he now only seeks records from "October 1, 2016 to present." The City provided Mr. Hawkinson a fee estimate dated March 7, 201 7 in which it explains "it would take approximately 3.5 hours for the lowest paid employee capable of performing the tasks of searching for and compiling documents to do so, at a rate of $25. 00 per hour." The City also estimates it would take 1.5 hours for "reviewing and if necessary redacting information required to be redacted under the law" including under Exemption (n). The City's fee estimate is a total of $37.50 which is comprised of"l.5 hours (2 of the 3.5 hours not being charged for) multiplied by $25.00." In its March gth petition the City is seeking to be allowed "to charge for an estimated 1.5 hours of segregation time at a rate of $25 .00 per hour for the lowest paid employee capable of reviewing and if necessary redacting exempt information under Exemption (n) .... " You indicate "[s]ome of the requested documents would reveal password and security information related to the City's new proposed website, which is part of the City's digital security infrastructure that is in place to safeguard highly secure, confidential and sensitive information, the disclosure of which would permit unauthorized access to such information, and the City must therefore redact the password and security information which is protected from disclosure by Exemption (n)." You also explain there are an estimated 200 pages of responsive records. Based on the information provided to date, I find the City has yet to meet its burden to establish that it may properly apply Exemption (n) to withhold portions of responsive records. Therefore, the City has not established how "the request could not have been prudently completed without the redaction or segregation" as required by G. L. c. 66, § 10(d )(iv). Further, the petition does not explain why $25.00 an hour is that of the lowest paid person capable of performing the task. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). Conclusion Accordingly, the City's petition to charge for time spent segregating or redacting is denied. It should be noted this determination only applies to the City's current petition to assess a fee for the time spent segregating or redacting records; this determination does not opine on

Paul S. Kawai, Esq. Page 3 March 16, 2017 whether the City may ultimately properly apply Exemption (n) to portions of these records. If the City maintains that Exemption (n) applies to portions of the records, it must explain with specificity how it applies. See G. L. c. 66, § lO(b)(iv), 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Mr. Hawkinson may appeal the substantive nature of the City's response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Supervisor of Records cc: John Hawkinson