James J. Wheaton v. Boston, City of - Police Department (SPR 20200005)

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

Rebecca S, Murray Supervisor of Records

January 9, 2020 | SPR20/0005

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) seeking an extension of time to furnish copies of a requested record, or any portion thereof, as well as to assess a fee in responding to a request made by James J. Wheaton. G. L. c. 66, § 10(c). As required by law, it is my understanding that the City furnished a copy of this petition to the requestor. Id. On | December 17, 2019, Mr. Wheaton requested:

e Any record related to the establishment and determination of the fines and late payment charges for any parking violation in the City of Boston for which any Boston local ordinance or regulation provides.

e Any record related to the difference between the fines and charges of the City of Boston referenced above and the maximum fines and charges provided for in Chapter 90, Section 20A1/2 of the General Laws of Massachusetts.

e Any record related to adoption or any subsequent amendment to the neighborhood permit parking program, including and ordinance or regulation related thereto.

e Any record related to the requirements imposed with respect to the neighborhood permit parking program, including the separate requirements of Massachusetts vehicle registration and proof of residence.

e Any record related to the rationale or legislative or legal purpose for imposing a requirement of Massachusetts vehicle registration in addition to the requirement of proof . of residence, or addressing why proof of residence is insufficient for the issuance of a resident permit,

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. SPR20/0005 Page 2 January 9, 2019

Petition 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. .

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).

In its letter to Mr. Wheaton dated January 2, 2020 the City states, “[t]his letter is both a response to your requests as well as a petition to the Supervisor of Records. G. L. c. 66, § 10 (c); (d) (iv); (petition for extension of time; petition to charge a fee of $25.00 per hour). This letter is also to notify you the City requires additional time to comply with this request. G. L. c. 66, § 10 (b). A copy of your requests and my responses to each are provided with this letter.”

The City notes, “[{i]n my December 30, 2019 response to both of your December 17, 2019 requests I stated: Today I spoke with Chief of Streets Chris Osgood. Chief Osgood is under the impression that your recent conversation with him and with Robert Arcangeli resolved the issues associated with this request. If this is not the case please let me know, otherwise, I will assume this request is satisfied. In your December 31, 2019 email you explained that you still expect to receive responses to both requests. In my January 2, 2020 letter I informed you that the City will need additional time to comply with these requests. The purpose of this letter is to petition the Supervisor of Records for additional time and the right to assess fees to comply with your requests.”

Shawn A. Williams, Esq. SPR20/0005 Page 3 January 9, 2019

The City states “[t]here is no date range provided so it is assumed you wish the Transportation Department to review all of its existing records. It is not yet clear how many hours are required to conduct such a review. The Transportation Department informed me that review would take a significant amount of time.”

I find that in light of the need to search for the records, the potential scope of redaction required to prevent unlawful disclosure, efforts undertaken by the municipality in fulfilling the current request and previous requests, 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 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). To the extent possible, the City must provide responsive records on a rolling basis. |

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 (d)(iv). 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). .

Shawn A. Williams, Esq. SPR20/0005 Page 4 January 9, 2019

In its petition the City expressed, “[t]he public records law permits a ‘reasonable fee for the publication of a public record except those records that are freely available for public inspection.’ G, L. c. 66, § 10 (d). I hereby petition the Supervisor to permit the City of Boston to assess a fee for the search, review, and segregation of records responsive to your requests. As indicated above it is not yet clear how many hours are required for review of responsive records. An estimate will be provided should the petition be granted by the Supervisor.”

The City further indicates “[p]ortions of records responsive to your request may contain information that is exempt from disclosure. Until a review of the records is conducted it is not clear what if any exemptions may apply to permit or require redaction or withholding.”

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.

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. Please be advised that any fee estimate by the Department must be in compliance with this determination, the Public Records Law, and its Access Regulations.

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(c), 10(d)(iv)(4), 10A(c).

Sincerely,

Rlecca Murray

Rebecca S. Murray Supervisor of Records

cc: James J. Wheaton