Kevin P. O'Flaherty v. Cambridge, City of - Law Department (SPR 20191634)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

August 16, 2019 SPR19/1634 Seah Levy Public Records Access Office City of Cambridge, Law Department City Hall, 795 Massachusetts Avenue Cambridge, MA 02139

Dear Seah Levy:

I have received your petition dated July 2, 2019 on behalf of the City of Cambridge (City) seeking an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the City furnished a copy of its petition to the requestor. Id. On July 29, 2019, Attorney Kevin O’Flaherty requested fourteen categories for “all emails, notes, memoranda, letters or other public records” relevant to “various construction projects by the City of Cambridge Inspectional Services Department.”

Petitions for an Extension of Time

Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering:

(i) the need to search for, collect, segregate or examine records;

(ii) the scope of redaction required to prevent unlawful disclosure;

(iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension;

(iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and

(vi) the public interest served by expeditious disclosure.

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

Seah Levy . SPR19/1634 Page 2 August 16, 2019

G. L. c. 66, § 10(c).

If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id.

The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R 36.06(4)(b).

The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id.

Petition for an Extension of Time

In its August 9, 2019 petition the City requests that they “be provided 30 business days in addition to the statutory 10 business days to respond, commencing upon receipt of payment for this request.” The City explains the additional time is necessary “due to the extensive volume of digital records requested, and the time involved to search, review, and segregate these records.”

The City indicates “the request will require a search of an unknown number of mailboxes back through the current mail archive, which encompasses over a decade of time, as no specific employee accounts or time period is identified. Time is required...to determine the correct search terms to locate these documents, receive the results of the searches, and review for the purposes of redaction and withholding an unknown number of results.” The City further indicates this will be conducted by the “Information Technology Department and the Community Development Department and the ISD Department, as the Departments most closely involved with the requested records.”

The City “has found the need to redact or withhold a variety of types of emails in similar search requests,” including: attorney-client correspondence; tax ID numbers; personnel records; medical information; interagency and intra-agency memoranda and letters regarding policy positions under Exemption (d); schematics, blueprints, and plans under Exemption (n); and home or personal cell phone numbers under Exemption (0).

I find that in light of the need to search for, collect, segregate or examine records; the scope of the redaction; and capacity of the City in fulfilling the request, the City has established good cause to permit an extension of time of 30 business days, G. L. c. 66 § 10(c)(i)-(iv).

Seah Levy SPR19/1634 Page 3 August 16, 2019

Petitions for ability to Assess Fees

The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv).

In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c, 66, § 10(d)(iv).

The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request.

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, § 10(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).

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, § 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, § 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, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4). .

Seah Levy SPR19/1634 Page 4 August 16, 2019

Current Petition

In its petition dated August 9, 2019, the City “requests that the City be permitted to charge the actual time involved to segregate, review and redact the records requested by Attorney Kevin O’Flaherty on 6/29/2019” and “to be allowed to charge a fee for the actual hours involved in this work.” The City notes, “[i]f the twenty hour estimate provided turns out to be less time than the actual time spent responding to this request, the City asks to be allowed to comply with the request to the extent paid for, and then submit a new estimate to the requester prior to completing the remainder of the response.”

The fee estimate the City provided to Attorney O’Flaherty on August 8, 2019, indicates an estimate of 110 hours between all the departments for “search, segregation, and copying time expenses,” at a rate of $25 per hour; 20 hours total for “review and redaction of email & electronic records,” at a rate of $25 per hour; and included a $50 deduction for 2 hours of time pursuant to 950 C.M.R. 32.07 (m)(1). .

Given these records contain attorney-client correspondence; tax ID numbers; personnel records; medical information; interagency and intra-agency memoranda and letters regarding policy positions under Exemption (d); schematics, blueprints, and plans under Exemption (n); and home or personal cell phone numbers under Exemption (0); the City has met its burden to explain how the request could not prudently be completed without redaction or segregation under applicable statutes. See G. L. c. 66, § 10(d)(iv). Therefore, the City may assess a fee for the time spent to segregate and redact these requested records.

Conclusion

In light of the City’s petition I find the City has met its burden to explain how given the ' nature of the responsive records, the request could not prudently be completed without segregation or redaction. See G. L. c. 66, § 10(d)(iv) Further, for the reasons discussed above, the City is granted an extension of time of 30 business days to provide the requestor the responsive records..

This office encourages the requestor and the City to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(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). Any updated fee estimate by the City must be in compliance with this determination, the Public Records Law, and its Access Regulations.

Please note the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(Gv)(4), 10A(c).

Seah Levy SPR19/1634

Page 5 August 16, 2019

Sincerely,

Rebecca S. Murray Supervisor of Records

cc: Kevin O’Flaherty, Esq.