Collin Dias v. Fall River, City of - Office of the Corporation Counsel (SPR 20180878)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 29, 2018 SPRlS/878 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 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 Mayor Jasiel Correia II that relates to the city of Fall River 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 II that relate to the city of Fall River 5) All Instagram messages sent or received from any account operated by Mayor Jasiel Correia II 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. SPR18/878 Page2 June 29, 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 SPRl 8/408 Determination of the Supervisor of Records (April 11, 2018); SPRl 8/603 Determination of the Supervisor of Records (May 15, 2018). In my May 15th determination I orderd the City to provide Mr. Dias a response in a manner consistent with the order, the Public Records Law and its Regulations. The City responded on June 11, 2018. Mr. Dias appealed and SPRl 8/878 was opened as a result. I understand that the City's responses to requests 1 and 9 are at issue in this appeal. 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, § lOA(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, § 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, § 1O (b )(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (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, § lO(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 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, § lO(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such

Joseph I. Macy, Esq. SPR18/878 Page 3 June 29, 2018 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 CMR 32.06(4). Request I In its June 11th response the City refers to Mr. Dias's narrowed request from May 1st as "broad, general, and overwhelming as to; a) make any search for responsive records orb) any production of the same virtually impossible." You note that the email "narrows the time frame from January 201 7 until the present, yet you still are requesting ALL text messages relating to the City of Pall River on any of the Mayor's devices. With such broad parameters of subject matter, 'relating to the city of Fall River', this does not modify the search to be more efficient or affordable." The City estimates the fee to be approximately $7,500. In his appeal petition Mr. Dias indicates "I submitted a very reasonable concession and modification. I am now asking for all text messages from the mayors phone number I identified in request one, and only request the messages between the Mayor and Chief of Staff Gen Anderade ONLY from 2018, and I only request records where it will take the city two hours to collect and segregate the requested record. So there should be no fee since a city can not charge for the first two hours." It should be noted that the request must reasonably describe the record being sought by including, for example, applicable time periods and/or topics. G. L. c. 66, § lO(a)(i). Mr. Dias is encouraged to clarify whether, with request 1, he only now seeks "the messages between the Mayor and Chief of Staff Gen Anderade ONLY from 2018." Upon this clarification, 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, § 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 municipality to produce records sought more efficiently and affordably). Request 9 In response to request 9, the City asserts "[a] search can be performed of Gen Andrade's city email if you specify what topic you are looking 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 note that "[u]pon 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." Mr. Dias notes "I submitted a reasonable modification, I only request public emails on Gen Anderade's City account that would take the city two hours to collect and such. Again there should be no fee for that." Mr. Dias is encouraged to clarify what specific time period he is seeking records from and also indicate any applicable topics he is seeking records about. Upon

Joseph I. Macy, Esq. SPR18/878 Page 4 June 29, 2018 this clarification, 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, § lO(b)(vii). It should be noted that the City 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. 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. Conclusion Accordingly, upon clarification from Mr. Dias, 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 Supervisor of Records cc: Collin Dias