Caitlin Russell v. Worcester, City of - Police Department (SPR 20170532)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 3, 2017 SPR17/532 Sergeant Michael J. Hanlon Worcester Police Department 911 Lincoln Square Worcester, MA 01608 Dear Sergeant Hanlon: I have received the petition of Caitlin Russell appealing the response of the Worcester Police Department (Department) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1 ). This request was the subject of previous appeals. See SPR 17 /164 Determination of the Supervisor of Records (February 16, 2017). Ms. Russell originally requested: 1) Any email communications between the Worcester Police Department and Donald J. Trump for President Inc. between June 16, 2015 and November 20, 2016; 2) Any memos, briefs or reports regarding the Nov. 18, 2015 rally at the DCU Center; 3) Any memos, briefs, or reports regarding protests/potential protests of Donald J. Trump's Nov. 18, 2015 rally at the DCU Center in Worcester. In responses dated December 9, 2016 and January 10, 2017, you provided Ms. Russell with fee estimates for provision of the records. Ms. Russell appealed and SPR 17 /164 was opened as a result. This office closed SPR 17 /164 with the proviso that the Department provide Ms. Russell with a supplemental response to her requests. In responses dated February 27, 2017 and February 28, 2017, you provided Ms. Russell with a revised fee estimate for the completion of her requests. Ms. Russell objected to this new fee estimate and SPR 17 /532 was opened as a result. I note that the request for the responsive records was made prior to the new provisions of the Public Records Law (Law) that went into effect on January 1, 2017. Therefore, the prior Law's provisions and regulations with respect to fees apply to this request and appeal. 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

Sergeant Michael J. Hanlon SPR17/532 Page 2 May 3, 2017 Fee estimates A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § lO(a) (2016 ed.); see also 950 C.M.R. 32.06(2) (2016 ed.) (where cost of complying with 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 (2016 ed.) (fees for public records). The Regulations provide that in cases where search and 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) (2016 ed.). The Regulations define "search time" as the time needed to locate, pull from the file, copy and re-file 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 (2016 ed.). The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § lO(a) (2016 ed.). Current appeal 11 In the Department's February 2i response, you provide Ms. Russell with an updated fee estimate for the costs associated with complying with her request. You estimate it will take ten (10) minutes to review each of the 1,435 emails responsive to her request, for a total of239 hours. You also estimate one (1) hour of search time, for a total of 240 hours spent in responding to this request, which at $25.00 per hour comes to a total of $6,000 for search and segregation. In the February 28th response, you further explain that because the City of Worcester maintains all emails, regardless of department, on one email system, the City's Technical Services will have to search this entire system for the requested records. You explain that the estimate provided "includes the time required to redact emails that pertain to the Worcester Police Department as well as emails involving other departments, as those departments would also be required to review and redact their emails before sending copies to you." In her petition Ms. Russell questions the necessity of 10 minutes of review per email. In the Department's February 2ih response you note that "it is not possible to know the content or exact length of each email. .. without manually reading each and every email," and as such estimate that ten (10) minutes is "a reasonable amount of time to read each email in full and then redact any protected information which may be contained within." It is unclear from the Department's response why it requires 10 minutes to review each and every email. While it is possible that some of the emails may require 10 minutes or more of review, it is not explained why every email would require a full 10 minutes of review. I find the Department has not yet met its burden to demonstrate the need for 10 minutes of review for each email. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). The Department must provide further detail to justify the quoted fee estimate. This could include

Sergeant Michael J. Hanlon SPRI 7/532 Page 3 May 3, 2017 examples of information that may need to be redacted that would cause the Department to spend 10 minutes reviewing each email, or a review of a representative sample of the responsive emails to determine if 10 minutes of review is required. Conclusion Subsequent to the intervention by a May 1st telephone conversation with a member of the Public Records Division staff, you agreed to provide Ms. Russell with a supplemental response to the request. I will therefore consider this administrative appeal closed with the proviso that this response is provided within ten (10) business days of the date of this determination. A copy of this 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. Ms. Russell may appeal the substantive nature of this response within ninety (90) days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Caitlin Russell