Joel Fleming v. Cambridge, City of - Law Department (SPR 20181319)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 14, 2018 SPRlS/1319 Keplin K. U. Allwaters, Esq. Assistant City Solicitor City of Cambridge 795 Massachusetts A venue Cambridge, MA 02139 Dear Attorney Allwaters: I have received the petition of Joel Fleming, Esq. appealing the response of the City of Cambridge (City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Attorney Fleming requested all emails sent to or by identified City employee regarding scooters. The City initially responded on August 16, 2018 and Attorney Fleming appealed. This request was the subject of a previous appeal. See SPRl 8/1256 Determination of the Supervisor of Records (August 31, 2018). The City provided a supplemental response on August 29, 2018. Attorney Fleming appealed and SPR18/1319 was opened as a result. Current appeal Attorney Fleming's request was dated August 1, 2018; however the parties do not agree on the date that the City received this request. The City's August 16th response indicates "[t]he City is treating your inquiry as a public records request pursuant to G.L. c. 66, § 10. Due to the complexity of searching for your requested documents the City hereby identifies a reasonable timeframe to your request as 25 business days from the receipt of your initial request, on or before, September 6, 2018, pursuant to G.L. c. 66 § 10 (b)(vi)." I understand the City provided a supplemental response on August 28, 2018 that includes a fee estimate of $112.50. In his appeal petition, Attorney Fleming asserts that the City's August 16th response is untimely and does not comply with the requirements for an extension of time request set forth in G. L. c. 66, § 1O (b )(i)-(ix). In addition, Attorney Fleming asserts that where the City did not comply with the requirements, the City waived its right to charge fees pursuant to G. L. c. 66, § lO(e). Specifically, Attorney Fleming asserts that the August 16th response did not meet the requirements in G. L. c. 66, § lO(b)(v), (vii) and (ix). 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

Keplin K. U. Allwaters, Esq. SPR18/1319 Page 2 September 14, 2018 In an August 29, 2018 response the City asserts "[o ]ther than stating that the request was complex and required additional time, the City could not, in ten (10) business days, identify which records it intended to produce." You also note "[b]ecause the City's Time Extension Letter did not constitute a denial or other such unfavorable decision - the City simply sent a Time Extension Letter - regarding Mr. Fleming's public records request, the City asserts that the requirement to inform the requester of his right to appeal the City's decision was not applicable in this context." Provisions ofG.L. c. 66, § JO(e) G.L. c. 66, § IO(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)." See also 950 C.M.R 32.06(2)(c) (indicating that "a records access officer shall not charge a fee for the provision of a public record unless the records access officer responded to the requester within ten business days under M.G.L. c. 66, § IO(b )"). G.L. c. 66, § 1O (b) provides that a written response must be provided not later than 10 business days after the initial receipt of the request. This response shall contain certain information, including, a confirmation of receipt of the request, and, where applicable, identify a reasonable timeframe to produce records, suggest a modification of the scope of the request, include an itemized fee estimate, and advise the requestor of his right to appeal to this office of Superior Court. See G.L. c. 66, § 1O (b ). Although the City responded on August 16th, this response did not identify records responsive to the request, suggest a modification of the scope of the request, nor advise the requestor of his right to appeal. See G.L. c. 66, § IO(b)(v), (vii), (ix). This response also did not contain an itemized fee estimate; instead, the City's fee estimate was contained in its August 28th response which was beyond 10 business days from receipt of the request. Further, G.L. c. 66, § IO(b)(vi) provides that a municipality shall "identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date be6ond the timeframes set forth herein" (emphasis added). Although the City's August 16t response notes that it "identifies a reasonable timeframe to your request as 25 business days from the receipt of your initial request, on or before, September 6, 2018 .... ," it does not appear to indicate it would provide the public records sought within 25·business days from receipt of the request as required by G.L. c. 66, § lO(b)(vi). For the reasons described above, I find the City did not provide a response under G.L. c. 66, § 1O (b) within 10 business days of receipt of the request. Whereas the City did not provide a written response under G.L. c. 66, § IO(b) within 10 business days, I find the City did not

Keplin K. U. Allwaters, Esq. SPR18/1319 Page 3 September 14, 2018 comply with G.L. c. 66, § lO(e) and 950 C.M.R 32.06(2)(c). Accordingly, the City may not assess a fee for the provision ofrecords responsive to Attorney Fleming's request. Conclusion Accordingly, the City is ordered to provide Attorney Fleming a 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: Joel Fleming, Esq.