Collin Dias v. Fall River, City of - Office of the Corporation Counsel (SPR 20180603)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 15,2018 SPR181603 Joseph I. Macy, Esq. Corporation Counsel City of Fall River One Government Center Fall River, MA 02722 Dear Attorney Macy: I have received the petition of Collin Dias appealing the response of the City of Fall River City Clerk (City) to a request for public records. G. L. c. 66, fj 10A; see also 950 C.M.R. 32.08(1). Specifically, on March 6,2018 Mr. Dias requested the following records: 1) All text messages and phone call records relating to the city of Fall River from Mayor Correias phone number 5084961433 or any other phone 2) All messages received or sent from any Facebook account under the control of 3) All messages received or sent from Jasiel Correias private Facebook account that relates to the city of Fall River 4) All twitter messages sent or received from any account operated by Mayor Jasiel Correia I1 that relate to the city of Fall River 5) All Instagram messages sent or received from any account operated by Mayor Jasiel Correia I1 that relate to the city of Fall River 6) Judge Macy's time sheets 7) Cathy Ann Viveiros Time sheets 8) Monica Souza's Time Sheets 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

Joseph I. Macy, Esq. Page 2 May 15,2018 9) All city related messages sent to or received by Gen Anderade on her city email, private email, phone, and any social media account operated by her This request was the subject of a previous appeal. See SPR181408 Determination of the Supervisor of Records (April 11,2018 ). In my April 1l thd etermination I ordered the City to clarify whether responsive records exist and provide Mr. Dias with any existing responsive records in a manner consistent with the order, the Public Records Law and its Regulations. The City provided a fee estimate on May l,201 8. Mr. Dias appealed and SPR181603 was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, S; 10A(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, S; 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, S; 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatlev, 419 Mass. 507, 51 1 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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, S; lO(d). The fees must Id. reflect the actual cost of complying with a particular request. A maximum fee of five cents ($.05) per page may be assessed for black and white copies for both single and double-sided copies of a public record. G. L. c. 66, S; lO(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, S; lO(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, a. redact or reproduce a record requested, but the fee shall not be more than $25 per hour. 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, S; lO(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such

Joseph I. Macy, Esq. Page 3 May 15,2018 segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, 5 lO(d)(iv). G. L. c. 66, 5 lO(d)(iii); 950 CMR 32.06(4). Request 1 In his appeal petition Mr. Dias indicates he is objecting to the City's response to requests 1 and 9. The City's May lStfe e estimate explains that request 1, "is so broad, general, and overwhelming as to; a) make any search for responsive records or b) any production of the same virtually impossible. There is no specificity as to the records other than 'all'. If such records exist it would require the production of every single text and phone call records pertaining to the city of Fall River which in one way or another would necessarily include every phone call made by the Mayor. Therefore, we cannot comply as the requests are overbroad." With respect to the fee involved for request 1, you indicate "as previously suggested innumerable times we will not conduct a search to determine whether there are responsive records without assurances that any fees attendant thereto will be paid, which fees, even with the revised guidance by the Secretary of State we estimate to be approximately $7,500." In his appeal petition, Mr. Dias notes "I also am appealing the fact that Judge Macy refers to my request 1 as 'over-broad'. I sent him back a compromise for records." Mr. Dias forwarded this office a May 1, 201 8 email in which he narrowed his original request. The City must provide a response consistent with the Public Records Law and its Regulations that addresses Mr. Dias's narrowed request. See G. L. c. 66, 5 lO(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce Request 9 With respect to request 9, the City explains "[a] search can be performed of Gen Andrade's city email if you specify what topic you are loolting for. All emails on Ms. Andrade's city email purportedly are related to city business and as such production of 'all city related messages' is too broad." You also assert "[ulpon more specificity a search can be performed at the cost of $140 per hour for a minimum of four hours ($280.00) and any documents responsive can be produced upon payment. A search will not begin until the City is provided specifications and payment." You continue by noting "[iln regards to 'private email, phone and any social media account operated by her' this is clearly a private request and not subject to public records request. Further, [the] City states, these records are not in the control, custody or possession of the City and therefore nothing can be produced."

Joseph I. Macy, Esq. Page 4 May 15,2018 In his appeal petition Mr. Dias notes "I am also appealing the 140 dollars an hour fee estimate in request 9. And I believe that private emails and text messages by gen Anderade that have city related business on them are public records." It should be noted that the City petitioned this office for permission to charge in excess of $25.00 an hour. See SPR181501 Determination of the Supervisor of Records (April 23,2018). In my April 13 t" determination I found that in light of the factors in G. L. c. 66, 5 10(d)(iv), as well as the applicable provisions of G. L. c. 66, 5 19(a), the City had not met its burden to charge in excess of $25.00 per hour. Therefore, I find the City has not met its burden to charge $140 an hour to comply with the request at issue in this appeal. With respect to "private email, phone and any social media account operated by her," 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 entity renders the emails and email addresses public r - e cor~ ds. At least one court has found that personal ernail addresses used for a public by a government employee are a public record. See Mechling v. City of Monroe, 152 Wn. App. 830 (2009) (Personal email addresses used by City Council members to discuss city business are not exempt fiom disclosure under public disclosure statutes). Further, 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, 5 lO(a); see also Reinstein v. Police Comrn'r of Boston, 378 Mass. 281,289-90 (1979). Whenever original public records are created outside the municipal offices, they shall be transferred on a regular and fiequent basis to secure storage in the municipal building. Accordingly, the City is ordered to provide Mr. Dias a response 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, Rebecca S. Murray W Supervisor of Records cc: Collin Dias Alison M. Bouchard, City Clerk