Ronald P. Matta v. Brockton, City of - Law Department (SPR 20180368)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 4, 2018 SPRlS/368 Aileen C. Bartlett, Esq. Assistant City Solicitor City of Brockton 45 School Street - City Hall Brockton, MA 02301 Dear Attorney Bartlett: I have received the petition of Ronald Matta appealing the response of the City of Brockton (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 5, 2018 Mr. Matta requested "[t]o view and inspect the e-mails of the Mayor's account, mayorwilliamcarpenter@gmail.com." The City provided a fee estimate on February 6, 2018 and Mr. Matta appealed. Fee estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10( d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d )(i). Municipalities may not assess a fee for the first two hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d )(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). 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

Aileen C. Bartlett, Esq. SPR18/368 Page 2 April 4, 2018 The City's response In its Febr~ary 6th response the City provides a fee estimate of $7,813.00 for the production of records. The City asserts "it will take an attorney in our office approximately 279 hours to review and redact the approximate 16,760 emails responsive to your request, at a cost of $6,975.00 (279 hours x $25.00 per hour). To be clear, this estimate does not include the time spent by the Mayor's office to segregate the emails that concern public business. This estimate only includes the time needed to review the emails to determine which information is exempt under the Public Records Law." You further note that "since the emails will need to first be printed on paper to enable review and redaction, the City estimates an additional cost of $838.00 (16,760 x $0.05 per page)." The City also refers to a September 7, 2017 response to the same request that contains additional information about the number of records at issue as well as the applicability of exemptions. Content oft he records A public employee has a diminished expectation of privacy with respect to use of personal email used in an official capacity. The use of personal email addresses by government officials, employees and/or board and commission members while conducting any day-to-day business of a government entity renders the emails and email addresses public records. At least one court has found that personal email addresses used for a public purpose by a government employee are a public record. See Mechling v. City of Momoe, 152 Wn. App. 830 (2009) (Personal email addresses used by City Council members to discuss city business are not exempt from disclosure under public disclosure statutes). The City 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, § 10(a ); see also Reinstein v. Police Comm'r of Boston, 3 78 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. Remaining fee amount The City is advised that it may not assess a copying fee for the cost of printing records for the purpose of "segregating" them. See 950 C.M.R. 32.06(1); 950 C.M.R. 32.03. Further, it appears the City is including time spent segregating or redacting records in this fee estimate. Please note that under the updated Public Records Law effective January 1, 201 7, a fee may not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). To the best of my knowledge, the City has not submitted a petition under G. L. c. 66, § lO(d)(iv). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records; therefore, the City may not currently

Aileen C. Bartlett, Esq. SPR18/368 Page 3 April 4, 2018 seek permission to assess fees through a petition under G. L. c. 66, § 10(d )(iv). See 950 C.M.R. 32.06(4)(g). Further, it is unclear how segregation or redaction is required by law in this matter; for example, it is not clear what type of information is contained in the responsive records, and which statutes, if any, require segregation or redaction. Therefore, I find the City has not met its burden under the updated Public Records Law to justify the February 6th fee estimate. If the City intends to assess a fee for time spent segregating or redacting for the production ofrecords responsive to Mr. Matta's February 5th request, it must explain how segregation or redaction is required by law. Conclusion Accordingly, the City is ordered to provide a revised fee estimate in a manner consistent with this order, the Public Records Law and its Regulations within ten 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@sec.state.ma.us. Sincerely, PJJUW-~ Rebecca S. Murray Supervisor of Records cc: Ronald Matta