Ronald P. Matta v. Brockton, City of - Law Department (SPR 20181278)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 6, 2018 SPR18/1278 Aileen C. Bartlett, Esq. Assistant City Solicitor City of Brockton 45 School Street - City Hall Brockton, MA 02301 Dear Attorney Bartlett: I have received the petition of Ronald Matta appealing the response of the City of Brockton (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on May 15, 2018 Ronald Matta requested "to view the mayor's email account mayorbillcarpenter@gmail.com." The City provided a response to Mr. Matta on May 22, 2018 that included a fee estimate for the provision of records. This request was the subject of a fee petition submitted by the City on May 25, 2018. See SPR18/768 Determination of the Supervisor of Records (June 4, 2018; July 9, 2018). In my June 4th determination I found the City may assess a fee for the time spent to segregate and redact the requested records. However, I also found the City must confirm how it calculated the amount of time needed to produce the records. I declined to reverse this finding in a July 9th determination. The City provided a response to Mr. Matta on July 9, 2018. Mr. Matta appealed and SPR18/1278 was opened as a result. 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 a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 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, § 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, 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. SPR18/1278 Page 2 September 6, 2018 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). The City's July 91 response " In its July 9th response you indicate "the City's estimate that it will take an attorney approximately 279 hours to review the 16,760 emails responsive to your request was based on an estimated review time of one minute per email. Again, this is a good faith estimate. The City cannot realistically determine the exact time required until redaction work is complete; however, we feel that one minute per email is a reasonable calculation of how long it will take to complete this task." In his appeal petition Mr. Matta asserts "[t]hey did not response [sic] to my appeal of the fee they wanted to charge me within the ten business days as required by law. Therefore they have to waive the charges." He also notes "[t]he courts also ruled that anyone using a public server has no expectation of privacy and even the attorney client privaliege [sic] is waived. Therefore I am entitled to view all e-mails without redactions and without charge." With respect to Mr. Matta's claim about waiving the fee, please note that G. L. c. 66, § 10(e ) provides that"[a ] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b)." Based upon a review of the file, I find the Ci'7 complied with G. L. c. 66, § lO(e) by providing a response to the May 15th request on May 22n , which included a fee estimate and other provisions of G. L. c. 66, § 1 O(b ), within 10 business days. As it pertains to the City's ability to assess fees for the time to segregate and/or redact responsive records, please refer to my June 4th and July 9th determination. However, this office encourages Mr. Matta and the City to communicate further to facilitate providing records efficiently and affordably. 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). To further this communication, the City must provide a response that describes the categories of emails responsive to the request and indicate whether it could provide responsive records from certain time periods in order to reduce the cost of producing records. See G. L. c. 66, § 1 O(b )(iv). Similarly, Mr. Matta is encouraged to inform the City whether he seeks records related to particular topics or time periods. See G. L. c. 66, § lO(a) (the request shall reasonably describes the public record sought).

Aileen C. Bartlett, Esq. SPR18/1278 Page 3 September 6, 2018 Conclusion Accordingly, the City is ordered to provide a supplemental response in a manner consistent with this order, the Public Records Law and its Regulations within 10 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: Ronald Matta