Collin Dias v. Fall River, City of - Office of the Corporation Counsel (SPR 20180767)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 11, 2018 SPR18/767 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, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on April 15, 2018 Mr. Dias requested "[a]ll records mentioning or referring to [a n identified individual] that are in possession of the city clerk or the 6th floor, with the exception of the law department" and "[a]ll emails mentioning or referring to [an identified individual] that were made to or from the 6th floor, with the exception of the law department." Previous appeal This request was the subject of a previous appeal. See SPRl 8/620 Determination of the Supervisor of Records (May 17, 2018). In my May 1 J1h determination I found the City had not met its burden to justify its fee estimate and I ordered the City to provide a response to Mr. Dias in a manner consistent with the order, the Public Records Law and its Regulations. The City responded on May 24, 2018. Mr. Dias responded and SPR18/767 was opened as a result. It should be noted that the City previously petitioned this office for permission to charge in excess of $25.00 an hour. See SPR18/501 Determination of the Supervisor of Records (April 23, 2018). In my April 13th determination I found that in light of the factors in G. L. c. 66, § lO(d)(iv), as well as the applicable provisions of G. L. c. 66, § 19(a), the City had not met its burden to charge in excess of $25.00 per hour. 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 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. SPR18/767 Page 2 June 11, 2018 reflect the actual cost of complying with a particular request. Id. 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, § 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, § 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, 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, § 10(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). In a May 4th fee estimate the City indicates "[t]he records in possession of the City Clerk are orders relating to the sale of two former school buildings. Copies of those orders may be provided at the rate of $0.05 per page." You further note that"[a ] broad search of emails that mention or refer to [an identified individual] would require the services of the City's third party vendor, MTSI, at a cost of $140 per hour. MTSI would need to search every employee's emails as the language in the request suggests. There are seventeen employees in the various departments located on the sixth floor of Government Center ( excluding the Law Department)." With respect to the amount of time needed to comply with the request you explain "[i]t would take MTSI a minimum of one hour per mailbox; 17 mailboxes at $140 per hour is $2,380. This information would then be sent to our IT Department who would then be tasked with printing, collating, and redacting (if appropriate)." ih In my May 1 determination I found the City had not met its burden to charge $140 an hour to comply with the request at issue in this appeal. I also found the City must demonstrate whether it responded to the request in compliance with G. L. c. 66, § 10(e ) and 950 C.M.R 32.06(2)(C ). In its May 24th response the City asserts it "stands by our previous response. The City continues to believe we can charge reasonable fees pursuant to the Statute. Upon receipt of payment and/or a request to narrow your parameters, we will proceed with a search." This ih response does not address the issues raised in my May 1 determination regarding the hourly rate of $140, or compliance with G. L. c. 66, § lO(e) and 950 C.M.R 32.06(2)(c). Conclusion Accordingly, the City is ordered to provide a response to Mr. Dias in a manner consistent ih with this order, the May 1 order, the Public Records Law and its Regulations within ten

Joseph I. Macy, Esq. SPR18/767 Page 3 June 11, 2018 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. Mr. Dias and the City are encouraged to maintain a professional working relationship to ensure that public records requests are clear and concise, and that records are produced efficiently and affordably. It should be noted that the request must reasonably describe the record being sought by including, for example, applicable time periods or topics. G. L. c. 66, § lO(a)(i). A municipality may communicate with a requestor to arrange to inspect a hard copy of the requested records at a mutually convenient time and location. Further, 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 municipality to produce records sought more efficiently and affordably. See G. L. c. 66, § lO(b)(vii). Sincerely, ~~· Rebecca S. Murray Supervisor of Records cc: Collin Dias