Ronald P. Matta v. Brockton, City of - Law Department (SPR 20180768)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Szipewisor of Records June 4,20 18 SPR181768 Aileen C. Bartlett, Esq. Assistant City Solicitor City of Broclcton 45 School Street - City Hall Brockton, MA 02301 Dear Attorney Bartlett: I have received your petition on behalf of the City of Broclcton (City) requesting permission to charge for time spent segregating or redacting responsive records as well as an extension of time to furnish copies of a requested record, or any portion thereof. G. L. c. 66, 5 10(c); G. L. c. 66, 5 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the City furnished a copy of this petition to the requestor. G. L. c. 66, 5 10(c), (d)(iv)(2). On May 15,201 8 Ronald Matta requested "to view the mayor's email account mayorbillcarpenter@,gmail.com." The City provided a response to Mr. Matta on May 22, 201 8 and submitted a petition to this office on May 25, 20 18. 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; (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; 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. Page 2 June 4,20 18 (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. 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 Id. obligation to provide copies of the records sought. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). The City estimates "it will take a city attorney 279 hours, or approximately 8 weeks, to review and redact the approximate 16,760 emails responsive to Mr. Matta's request.'~asedo n this anticipated time commitment, the City submits this petition for an extension of time to comply." The City asks to be granted "one hundred twenty (120) days to comply following Mr. Matta's payment of the estimated fee." G. L. c. 66, 5 lO(c) provides that the Supervisor may grant an extension of time to a municipality to produce records upon a showing of good cause. The Supervisor may grant a single extension to a municipality not to exceed 30 business days, unless 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. Upon such a determination, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. I find the City has not met its burden to demonstrate how an exteiision of time, particularly beyond 30 business days, is warranted under G. L. c. 66, 5 10(c). As described below, the City and Mr. Matta are encouraged to communicate to facilitate providing records more efficiently. Petitions for ability to assess fees 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, 5 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, Id. redact or reproduce a record requested, but the fee shall not be more than $25 per hour.

Aileen c. Bartlett, Esq. Page 3 June 4,201 8 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 (Supervisor) under a petition under ti. L. c. 66, 5 1O (d)(iv). $ee ti. L. c. 66, 5 1O (d)(iii); 950 C.M.R. 32.06(4). The 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, the fee is necessary such that the request could not have been prudently completed without the redaction, segregation or fee in excess of $25 per hour, and the amount of the fee is reasonable and the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, 9 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 Id. circumstances. I understand the City provided Mr. Matta a fee estimate in its May 22ndr esponse based on 279 hours at an hourly rate of $25.00 an hour to produce responsive records. The City asserts it "advised Mr. Matta that the Mayor's emails are likely to contain personnel matters, matters that elicit privacy concerns, matters of public safety, and communications protected by the attorney-client privilege." The City refers to the mayor's various roles, including Chief Executive Officer for the City, appointing authority for the City, and Chairman of the Broclton School Committee, to support the position that responsive emails must be reviewed for information that is exempt from disclosure, specifically information that would fall under Exemptions (a), (b), (c), (d), (f), (n), and (0) of the Public Records Law. The City also cites G. L. c. 268A, 5 22; the attorney-client privilege; work product and G. L. c. 7 1, $5 34D, 34E in support of its position. Mr. Matta refers to Nat'l Econ. Research Assocs. v. Evans, 2006 Mass. Super. LEXIS 371 (2006) and Falmouth Fire Fighters' Union Local 1497 v. Town of Falmouth, No. BACV200900517,2011 WL 7788014, at V (Mass. Super. Feb. 2,201 1) in support of his position that responsive emails should be available without charge. However, in Nat'l Econ. Research Assocs., the court found that attorney-client communications maintained on a Yahoo email account could be protected by the attorney-client privilege. With respect to Falmouth Fire Fighter's Union, although the court found that a Town employee did not have a reasonable expectation of privacy to sustain a claim under G. L. c. 214, 5 IB, this opinion did not address whether any exemptions to the Public Records Law could apply to the emails at issue. In addition, the City cited reasons other than privacy, including the existence of student records under G. L. c. 71, $9 34D, 34E, that could potentially be withheld in the records. Therefore, I find these cases do not require that the responsive records be provided free of charge.

Aileen c. Bartlett, Esq. Page 4 June 4,20 18 In light of the City's May 25thp etition, I find the City has met its burden to explain how the fee is necessary such that the request could not prudently be completed without redaction or segregation. See G. L. c. 66, cj lO(d)(iv). The City has also demonstrated the fee is not designed Id. to limit, deter or prevent access to requested public records. Therefore, the City may assess a fee for the time spent to segregate and redact the requested records. However, the City must confirm how it calculated the amount of time needed to produce the records. The City is also reminded that it may not assess a fee for the time spent separating personal emails from City- related emails. This office encourages Mr. Matta and the City to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, 5 lO(b)(vii) (an agency 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 records sought more efficiently and affordably). Conclusion For the reasons described above, I decline to grant the City's petition seeking an extension of time to produce records. However, the City is allowed to charge for the time to segregate and redact the requested records, but it must confirm how it calculated the amount of time needed to produce the records. Please note, the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. G. L. c. 66, 5 lO(d)(iv)(4), 1O A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Ronald Matta