Edward J. Marenburg v. Boston Public Health Commission (SPR 20190940)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 24, 2019 SPR19/0940 Attorney Batool Raza Boston Public Health Commission Office of the General Counsel 1010 Massachusetts A venue Boston, MA 02118 Dear Attorney Raza: I have received the petition of Mr. Edward J. Marenburg appealing the fee estimate provided by the Boston Public Health Commission (Commission) in response to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). On April 16, 2019, Mr. Marenburg, on behalf of the Sheet Metal Workers' International Association Local Union Number 17, requested "[a]ll [proposals], either by email, mail or fax from: Air Cleaning Specialists of New England, LLC ... [a]ll [emails] by any person at the Boston EMS (@bostonems.org) and person at the Boston Public Health Commission (@bphc.org) to and from: [various emails] ... " and "[a]ll emails (no matter what the subject), to and from: cushing@bostonems.org," all for the dates January 1, 2017 to April 16, 2019. On April 22, 2019, the Commission responded to Mr. Marenburg's request with a fee estimate. The Commission estimated that a total of 7 hours would be needed to search for, produce, review, redact, and segregate responsive records. They quoted a total fee of $150, which Mr. Marenburg paid on the same day. A po1iion of the records were provided. On May 3, 2019, Mr. Marenburg requested "all emails (to and from) John Cushing, no matter what the subject, from the dates 4-16-2016 through 5-2-2019." The same day, the Commission responded, stating that they were considering this a new request, separate from the April 16, 2019 request. They also provided a fee estimate of $4,798.75, for the segregation and redaction of 18,475 responsive emails their preliminary search located. They explain that "because Mr. Cushing is the facilities manager of Boston EMS buildings, his emails could potentially fall under the public records exemption under M.G.L. c. 4, § 7(26)(n) as they relate 'to the security or safety of persons or buildings, structures, or facilities."' In their response, the Commission also requested that Mr. Marenburg specify "the specific purpose of [his] request" 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

Attorney Batool Raza SPR19/0940 Page 2 May 24, 2019 such that "a determination of whether [he is] requesting these records for a commercial purpose" could be reached. On May 9, 2019, after working with Mr. Marenburg to narrow the scope of his request regarding requested emails, the Commission provided an additional supplemental response. Mr. Marenburg's revised request was for "[a]ll emails to and from John Cushing (cushing@bostonems.org) from the dates of 1-19-2019 to 5-8-2019." The Commission reiterated their position regarding the potential applicability of Exemption (n) and provided a revised fee estimate after determining that "there are about 4,252 e-mails to review." The revised fee estimate totaled $1,062.60 Unsatisfied with this response, Mr. Marenburg petitioned this office, and this appeal, SPRl 9/0940 was opened as a result. Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 1O (b )(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket m nature). Any non-exempt, segregable portion of a public record 1s subJect to mandatory disclosure. G. L. c. 66, § lO(a). Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § lO(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d )(i).

Attorney Batool Raza SPR19/0940 Page 3 May 24, 2019 Municipalities may not assess a fee for the first (two) 2 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, § 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, 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). Further, 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 Commission 's May 9th Response In the Commission's May 9, 2019 response, it provides a fee estimate. They anticipated that it would take 2 hours to search for and produce the requested records, with the fee waived pursuant to 950 CMR 32.07 (2)(m)(l), and 34 hours to segregate and redact, charged at a rate of $25 per hour. In addition, they assessed a fee of $212.60 for "black and white copies of approximately 4,252 emails [at] $0.05" per page. The total fee estimate comes to $1,062.60. It appears the Commission is including time spent segregating or redacting records in its fee estimates. Please note that under the updated Public Records Law, a fee may 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, § 10( d)(ii); 950 C.M.R. 32.06(4 ). I am not aware that the Commission has submitted a petition under G. L. c. 66, § 10(d )(iv) . Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. However, the Commission may provide additional information regarding how the redactions are required by law. provide further explanation of how the fee assessed in its May 9, 2019 estimate is expressly provided for and consistent with G. L. c. 66, § lO(d)(ii), (iv). Conclusion Accordingly, the Commission is ordered to provide Mr. Marenburg a response in a manner consistent with the Public Records Law, its Regulations, and this order 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.

Attorney Batool Raza SPR19/0940 Page 4 May 24, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. Edward J. Marenburg