Brian Moy v. New Bedford, City of - Office of The City Solicitor (SPR 20180681)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 17, 2018 SPR18/681 Elizabeth Treadup Pio Associate City Solicitor Office of the City Solicitor 133 William Street, Room 203 New Bedford, MA 02740 Dear Attorney Treadup Pio: I have received your petition on behalf of the City of New Bedford Office of the City Solicitor (City) requesting permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § lO(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv)(2). In a request submitted on April 28, 2018, Brian Moy with Washington University requested a "copy of all emails sent and received by the Office of the Mayor for the period of January 1, 2018 through March31,2018." Petitions 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, § 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). 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 the request is for a commercial purpose. 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

Elizabeth Treadup Pio SPR18/681 Page 2 May 17, 2018 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 redaction or segregation or fee in excess of $25 per hour; 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. Id. Current petition In its May 1 oth petition the City requests "approval for time spent segregating and redacting the public records responsive to Mr. Moy's request." The City explains "[t]he requested records are highly likely to contain information that the City believes it is prudent to redact under exemptions ( d) ( deliberative process exemption) and (c ) (privacy exemption). The City further explains "[t]he Mayor and his staff regularly receive and send information about policies that are still under consideration and whose premature disclosure could taint the deliberative process." The City indicates the Mayor also receives "highly sensitive information about employees and citizens, the disclosure of which would constitute an unwarranted invasion of privacy under exemption ( c ). The City cites multiple redactions that are required by law pertaining to the responsive records including information regarding sex victim and rape report information, juvenile delinquency case information, medical records, etc." The initial itemized fee estimate sent to Mr. Moy totaled $9,870. This was calculated based off "approximately 23,808 responsive emails" and an "estimate it will take one minute to review and redact each email." This would total "396.8 hours to complete the response" and the city indicates a reduced rate at $25.00 per hour from $32.14 for the Legal Administrator to perform the review. After working with Mr. Moy to narrow the scope of the request in an effort to reduce the cost, the new fee estimate provided by the City on May 15th totals $2,425.00 and is calculated in the same manner as the initial fee estimate. In light of City's May 4th petition, the City has met its burden to explain how the fee for segregation and redaction is necessary such that the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § IO(d)(iv). The City has also demonstrated the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § IO(d)(iv). Therefore, the City may assess a fee for the time spent to segregate and redact the requested records. Conclusion For the reasons described above, the City is allowed to charge for the time to segregate and redact the requested records. This office encourages Mr. Moy and City to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 1O (b )(vii) ( a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor

Elizabeth Treadup Pio SPR18/681 Page 3 May 17, 2018 to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Please note, the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d )(iv )(4 ), lOA(c). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Brian Moy