Jeanne L. Holmes-Kireilis v. Brockton, City of (SPR 20190796)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 2, 2019 SPR19/796 Aileen Bartlett, Esq. Assistant City Solicitor City of Brockton Law Department 45 School Street Brockton, MA 02301 Dear Attorney Bartlett: I have received the petition of Jeanne Holmes appealing the response of the City of Brockton (City) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1 ). Specifically, on March 2, 2019, Ms. Holmes requested certain records "pertaining to Brockton emergency parking bans and all winter parking bans from September 1, 2018 through March 2, 2019." On March 3, 2019, Ms. Holmes modified her request to extend the time period from September 1, 2018 through March 4, 2019. Prior appeal The responsive records were the subject of a prior appeal. See SPRl 9/583 Determination of the Supervisor of Records (Supervisor) (April 2, 2019). On March 14, 2019, the City provided Ms. Holmes with fee estimate for 3.5 hours of search and compilation of the responsive records at $25 per hour, totaling $87.50. To avoid the charges for paper copies, the City informed Ms. Holmes that it can provide the records electronically via email, where possible, or provide the records on a compact disc. As a result of the amount of time assessed, Ms. Holmes petitioned the Supervisor and the prior appeal was opened. In my April 2nd determination, I found that the City's March 14th response and estimate did not indicate whether any of the requested records are freely available for Ms. Holmes to inspect, and whether the City has assessed the lowest paid rate of the employee capable of conducting each task. Furthermore, the City did not identify whether it is in possession, custody or control of all the requested records or categories of requested records. G. L. c. 66, § 1O (b )(ii), (iii). Nor did the City identify any records, categories or portions ofrecords that it intends to withhold with specificity under any exemption(s) in the Public Records Law. See G. L. c. 66, § 1 O(b )(iv). I ordered the City to provide a supplemental response to Ms. Holmes. 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. SPR19/796 Page2 May 2, 2019 The City's April 17, 2019 supplemental response In its April 1? 1h supplemental response, the City indicates that the responsive records are held by the City's Police Department, the Traffic Commission, and the Department of Public Works. Your April response explains: "[a]s stated in our prior correspondence, the City has already begun compiling the responsive records and determined that it would take a total of 5.5 hours to compile across these three city departments. None of these documents are freely available for inspection; compilation has required employees from each of these departments, including several [City] police officers, to pull files, search for records, generate reports, and copy and/or scan the documents to be produced. I have been advised that the hourly rate for the lowest paid employee who has the necessary skill required to compile the responsive records in any of the departments is $27.68." The City was asked to clarify whether the maximum hourly rate of $25.00, allowed by the Public Records Law, is the lowest paid hourly rate of the employee capable of conducting the tasks necessary. The City indicates that $27.68 is the lowest paid hourly rate of the employee capable; therefore, it revised its estimate to $25.00 per hour. Its April 1? 1h response also states that the City reduced the amount of time necessary to complete the tasks of searching, compiling, copying and/or scanning the responsive records from 5.5 hours to 3.5 hours total, crediting Ms. Holmes with 2 hours of free time. See G. L. c. 66, § 10(d )(iii). The total estimated cost to Ms. Holmes is $87.50 to provide copies of her Request Numbers 1, 2, 3, 4, 6, 8, 9, 10 and 11. Your April response also informed Ms. Holmes: "[p] lease be advised that this fee does not include time spent redacting the records, as no redactions will be required. Further, as stated previously, the City will transmit the documents electronically as requested to avoid the cost of paper copies. To be clear, the City does not intend on charging for any additional tasks needed to fulfill your request." No responsive records Under the Public Records Law, the RAO shall identify any records that are not within its possession, custody or control of the public record sought. See G. L. c. 66, § 6A(d); see also 950 C.M.R. 32.06(3)(c)(2). The City's April 1? 1h supplemental response informed Ms. Holmes that it has no records responsive to her itemized Request Numbers 5 and 7. There is no obligation to create a record in response to a public records request. 32 Op. Att'y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). In her April 1? 1h email to this office requesting a second appeal regarding the requested

Aileen C. Bartlett, Esq. SPR19/796 Page 3 May 2, 2019 records and the $87.50 estimate, Ms. Holmes writes, "[a]s I stated in my first appeal, the Mayor as well as John Hallisey of the [City's] Police Department made public statements in which they provided information about the number of vehicles that they dealt with over the snow emergencies in the [City]. Clearly, if they were able to provide the numbers, they already have the factual data to support those representations. Therefore, there is no reason to charge me for any of those documents that are readily available or should be based on the public statements." The City's April 1J 1h supplemental response invites Ms. Holmes to discuss with the City potential ways that the requests could be modified. Again, I encourage the parties to communicate and work together to satisfy Ms. Holmes' requests. I find that the City should review Ms. Holmes' April 17th suggestions for modification of her requests, and communicate with Ms. Holmes regarding what records it actually possesses that may be responsive to her modifications. The City must provide a further response to her to clarify her suggestions and modifications to her original March 2019 requests, and whether the modifications could reduce the overall costs. Conclusion Accordingly, the City is ordered to provide a further response to Ms. Holmes' requests and suggested modifications, 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. ~~ Rebecca S. Murray Supervisor of Records cc: Jeanne Holmes