Hayley Johnson v. Worcester, City of - Office of the City Manager (SPR 20191500)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 1, 2019 SPR19/1500 Joshua Martunas Records Access Officer City of Worcester 9-11 Lincoln Square Worcester, MA 01608 Dear Mr. Martunas: I have received the petition of Hayley Johnson, a repo1ier for MassLive, appealing the response of the City of Worcester Police Depmiment (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on June 27, 2019, Ms. Johnson requested a copy of: "Any and all internal affairs documents in the [Department] filed from July 1, 2018 through today's date; and [a]ny and all internal affairs documents regarding [an identified Depmiment officer], aside from the May 20, 2019 document I previously received." On July 15, 2019, the Depmiment provided a response inf01ming Ms. Johnson that 46 pages of records are withheld under Exemption ( d) due to ongoing and incomplete litigation, therefore, the Department posits that the records are substantially related to the ongoing litigation. The Department also provided Ms. Johnson with a $387.50 estimate for 1,055 pages of responsive records. As a result of the estimate, Ms. Johnson petitioned the Supervisor of Records (Supervisor), and this appeal was opened. I note that Ms. Johnson did not appeal the Department's Exemption (d) claim to withhold the records that are the subject of the ongoing litigation. Fee estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 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

Joshua Martunas SPR19/1500 Page 2 August 1, 2019 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) 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, § 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). 111 The Department's July 15 response indicates that it has not charged any fees for time spent in performing a preliminary search, or for the preliminary review of the sample ofrecords. The Department's estimate specifies: 993 pages@ 1 minute per page (16.5 hours) @$25.00/hour $412.50 62 pages@ 1 minute per page (1 hour)@ $25.00/hour 25.00 Two hours, free of charge@ $25.00/hour -50.00 TOTAL CHARGE TO REQUESTOR $387.50 The Depaiiment' s estimate is based on the maximum hourly rate allowed by the Public Records Law to segregate and redact the records, and 2 hours of time has been waived under the Public Records Law. See G. L. c. 66, § 10(d )(iii). Regarding the hourly rate, the Department asse1is, "[e]mployees working in an administrative or clerical position are not capable of reviewing these documents, as they lack the comprehensive understanding of the applicable laws required for proper redaction. The city Solicitor, Assistant City Solicitors, and the city's Records Access Officer are the only city employees who possess the proper knowledge and ability required to review and segregate these records." Your response indicates the Records Access Officer (RAO) is the lowest paid employee capable of segregating and redacting the records, and the RAO's rate exceeds $25.00 per hour. Therefore, the Department's estimate is based on the $25.00 per hour rate. However, the Department is advised, 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, § 10( d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). To the best of my knowledge the Department has not filed a petition with the Supervisor to assess fees for segregation and/or redaction of the records. Neither did the Department claim any exemptions that would require such segregation and redaction by law. I find that the Department must revise its fee estimate regarding the segregation and redaction fees.

Joshua Martunas SPR19/1500 Page 3 August 1, 2019 Waiver off ees In her petition, Ms. Johnson states, "[o]n July 15, 2019, I requested the 62 pages pertaining to the named employee at no cost, as they fell within the first two hours of work. I am appealing the cost of $387.50 on the basis that public documents should be free." Ms. Johnson is advised that the Supervisor may not mandate that an RAO waive fees for complying with a public records request. Under the Public Records Law, the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. See G. L. c. 66, § lO(d)(v); see also 950 C.M.R. 32.07(2)(k) (emphasis added). Burden of specificity The Depatiment asse1ied in its estimate, "[d]ue to the nature of the records requested and a preliminary review of a sample of the records by the law department, the city has determined that there is a high likelihood that some of these records contain information which the city is prohibited by law from disclosing. These records need to be reviewed manually to identify and perform redactions required by law." As discussed earlier in this determination, the Department may not assess any fees for segregation (review) and/or redaction unless said segregation and redacted is required by law, or approved by the Supervisor 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). Furthermore, the Depaiiment did not claim any exemption(s) in the Public Records Law that would support the withholding of portions of the responsive records. Under the Public Records Law, a records custodian must prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how pmiions of the responsive records are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Conclusion Accordingly, the Department is ordered to provide Ms. Johnson with a response to the request, provided 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.

Joshua Martunas SPR19/l 500 Page 4 August 1, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Hayley Johnson