Debra Waller v. Newton, City of - Law Department (SPR 20170967)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

July 21, 2017 SPR17/967

Jonah M. Temple

Assistant City Solicitor

City of Newton Law Department 1000 Commonwealth Ave Newton, MA 02459

Dear Attorney Temple:

I have received your petition on behalf of the City of Newton (City) seeking an extension of time to furnish copies of a requested record, or any portion thereof, or in the alternative relief from its obligation to produce responsive records. G. L. c. 66 § 10(c); see also 950 C.MLR. 32.06(4). The City is also seeking to charge more than $25.00 per hour for the production of records. G. L. c. 66, § 10(d)(iv). As required by law, the City furnished a copy of this petition to the requester. G. L. c. 66, § 10(c), (d)(iv)(2).

On June 15, 2017 Ms. Waller submitted three requests to the City numbered 17-123, 17- 124, and 17-125. In all three requests Ms. Waller is seeking “all emails between howard.levine@klgates.com and any @newtonma.gov email address” with various date ranges; request No. 17-123 has the date range “1/1/2016 through 10/31/2016,” request No. 17-124 has the date range “6/1/2015 through 9/30/2015,” and No. 17-125 has the date range “6/1/2011 through 6/1/2013.” After the City requested Ms. Waller modify her request, she changed the date range on her No. 17-125 request to “12/1/2011 through 6/1/2013.”

Petitions for an extension of time

Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering:

(i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure;

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

Jonah M. Temple SPR17/967 Page 2 July 21, 2017

(iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension;

(iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests;

(v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and

(vi) the public interest served by expeditious disclosure.

G. L. c. 66 § 10(c).

If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id.

The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requester within ten business days after receipt of a request for public records. 950 CMR 36.06(4)(b).

Request for relief from obligation to produce responsive records

In its petition dated July 14, 2017 in support of its request for relief from its obligation to respond to the three requests received on June 28", the City explains they “have received 12: public records requests from the Requestor since the beginning of 2017 that all appear to be connected to a building permit.” You explain “the City has responded to the first nine requests and now seeks relief from responding to the three most recent requests.” The City “feels strongly that these requests are the latest in a series of requests from the Requester, submitted in a short period of time, that are both frivolous and designed to harass the City.”

June 15" requests

The City’s July 14, 2017 petition pertains to three requests the City received on June 15" related to email communications between Mr. Levine and City employees all having different date ranges. You indicate intent to harass the City “Ys evidenced by the volume and repetitive nature of the request. The City further states the requests do not appear “‘to be intended for the dissemination of information to the public concerning government activity,” but instead “to aid

the Requester in her litigation against the City and NWH.”

Based on the information provided in the July 14" petition, I find the City has not met its burden to establish that the requests received on June 15", which relate to email communications between Mr. Levine and City employees, are “part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the

Jonah M. Temple SPR17/967 Page 3 July 21, 2017

requests are not intended for the broad dissemination of information to the public about

actual or alleged government activity” as required by G. L. c. 66 § 10(c) (emphasis added).

Extension of time

The City states that “[i]f the Supervisor does not grant the City’s request for full relief from its obligation to respond to the outstanding requests” in the alternative “the City respectfully requests an extension of time to respond to request No. 17-125.” The City explains “the only way to access pre-2014 email records is to go into each individual user’s email account” as a result “hundreds (and potentially more than a thousand) email accounts must be accessed individually.” The City further explains “this search requires the Chief Information Officer to access and search every single email account during the two year time period of the request, that undertaking will take a minimum of 120 hours, and potentially much longer.” .

The City requested that Ms. Waller modify her request since “the City simply does not have the resources to respond any sooner.” Ms. Waller modified her Request No. 17-125 by changing the time frame from 2 years to 18 months. The City indicates “this will have a minimal effect on the time and resources it will take for the City to respond.” | find that in light of the volume of requests and broad scope of request No. 17- 125, the City has established good cause to permit an extension of time of 30 business days for production of the responsive records. G. L. ¢. 66 § 10(c)(i)-(iv).

Petitions for ability to assess fees

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, § 10(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, § 10(d)(iv).

Ms. Waller submitted her requests June 15, 2017 and the City filed their petition to charge in excess of $25 an hour on July 14, 2017. The City did not submit its petition within the timeframe of 10 business days after receipt of the requests, consequently, I cannot approve the City to charge more than $25 an hour for the provision of records with respect to the June 15, . 2017 requests. See 950 C.M.R. 32.06(4)(g).

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Conclusion

Accordingly, I find the City has not met its burden in being relieved of its obligation to respond to the public records requests, however, it has established good cause for an extension of time. See G. L. c. 66 § 10(b). The City’s petition to assess fees in excess of $25 an hour is not approved because the City did not submit its petition in a timely manner. See 950 C.M.R.

— 32.06(4)(g). The City-is advised it must provide the records in a manner consistent with this determination, the Public Records Law and its Access Regulations. The requestor may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.LR. 32.08(1).

Sincerely, Rebecca S. co. Muna Supervisor of Records

ce: Debra Waller