James J. Wheaton v. Boston, City of - Public Records (SPR 20192559)

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

Rebecca S, Murray Supervisor of Records

January 6, 2020 SPR19/2559

Shawn A. Williams, Esq. Director of Public Records Records Access Officer

City of Boston

1 City Hall Plaza, Room 615 Boston, MA 02201

Dear Attorney Williams:

I have received your petition on behalf of the City of Boston (City) requesting 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). As required by law, the City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c), On December 13, 2019, James J, Wheaton requested “email messages, text messages, voice messages recorded in digital form and other forms of electronic communication, and originated from and after January 1, 2016, that contain any of the following information:

e Arequest that the City of Boston provide (directly or via other access) any records pursuant to the Act; and/or A response in any manner to such request

e Any internal reference within the City of Boston to such a request;

e Any reference to an appeal or other complaint with regard to the Act to, with, or otherwise involving the office of the Supervisor of Records of the Commonwealth of Massachusetts.”

- 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;

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

Shawn A. Williams, Esq. SPR19/2559 Page 2 January 6, 2020

(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.

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).

Extension of time to produce responsive records

In its December 30, 2019, petition, the City requests “the Supervisor to permit the City additional time needed to comply with your request.” The City indicates “[i]f the City dedicated 7.5 hours per week on this request it would take months to complete.”

The City explains “[t]he City of Boston consists of over 70 different department. Many of those have sub-department. To comply with your request I must reach out to each of these departments to obtain information on all records requested from each.” Further, the City explains “(a]fter I obtain copies of requests and responses from the City’s department I will review each to determine whether any portion could or must be redacted of withheld.”

The City indicates common law attorney-client privilege, Exemption (a), Exemption (c), and Exemption (f) as applicable to the responsive records for potential redaction. The City explains “[a] review of my email corr espondence reveals that I have sent tens of thousands of emails over the past three years.”

I find that in light of the need to search for the records, the potential scope of redaction required to prevent unlawful disclosure, and the capacity of the City to produce the request without the extension, the City has established good cause to permit an extension of time. G, L. c. 66, § 10(c)(i)-(ii). I hereby grant the City an extension of 30 business days beyond the time allowed in G. L. c. 66, § 10(b)(vi) (a municipality may provide a timeframe not to exceed 25 business days to produce responsive records). Please note the time may begin to run once the

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City receives payment. G. L. c. 66, § 10(c) (the Supervisor may grant a single extension to a municipality not to exceed 30 business days).

Petition to Assess Fees

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 (Supervisor) under a petition under G. L. c. 66, § 10 (Ov) See G. L. c. 66, § 10(d)(iti); 950 C.M.R. 32.06(4).

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. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose.

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. 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; 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.

Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact

public records must be made within ten business days after receipt of a request for public records, 950 C.M.R. 32. 06(4)(g).

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,

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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)(g).

In its December 30" petition, the City requests the City be permitted “to assess a fee for the search, review, and segregation of records responsive to your request.” The city indicates “[w]hile the hourly rates of department personnel required to review the responsive records _ exceed the $25.00 hourly rate, I do not petition the Supervisor here for an hourly rate that is in excess of $25.00 per hour.”

The City indicates “[iJt is not possible to determine at this time how many requests and responses exists for each of the City’s departments; there are thousands of pages of responsive records to review...[s]ome request are made by email and other in person... [i]t is likely the actual time needed to review responsive records will far exceed the estimate; however, I petition

the Supervisor based upon the estimate provided and do no anticipate the need to seek additional fees...”

The City indicates common law attorney-client privilege, Exemption (a), Exemption (c), and Exemption (f) as applicable to the responsive records for potential redaction. The City explains “[i]n addition to correspondence with requesters, I also correspond directly with City departments without these third parties. This correspondence consists of attorney-client communications that are exempt from disclosure.”

Regarding potential redactions under Exemption (a), the City cites G. L. c. 41, § 97D and G. L. c. 71, § 34D, 34E. The City explains “there are Boston Police Department public records requests that contain information from requesters regarding allegations of sexual assault” and “the information contained in a public records request may contain minor student record information that exempt by statute...”

For redactions under Exemption (c), the City explains any “records that contain personnel or medical information...[i]f this information is not commonly available from another public source it may be redacted at the discretion of the record custodian...” The City also explains Exemption (f) “would appear in many requests to the Boston Police Department.

In light of the above, I find the City has met its burden to explain how the request cannot not be prudently completed without redaction or segregation.

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Conclusion

Accordingly, I find the City has established good cause for a time extension of 30 business days as described above. Further, in light of the City's petition, I find the City has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the City may assess a fee for segregation and redaction.

This office encourages Mr. Wheaton 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.)

Please note, Mr. Wheaton 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)(iv)(4), 10A(c).

Sincerely, Rebecca S. co Mor Supervisor of Records

ce: James J. Wheaton