Alyssa Anderson v. Boston, City of - Police Department (SPR 20200730)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 12, 2020 SPR20/0730 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). Alyssa Anderson requested three categories of records on separate dates. Specifically, on April 17, 2020, she requested “a copy of all permits, approvals, applications, requirements, agreements, plans, measurements, memoranda, records, reports, complaints, correspondences including emails, and other documents and instruments related to the following permits, certificates of occupancy and ZBA appeals: (1) ALT540720, BOA559054, ALT597794 and COO869801 from September 1, 2015 through the date on which all such records are provided to me; and (2) COO519942, ALT376191, BOA399378 and ALT585556 from April 1, 2014 until the date on which all such records are provided to me. Please include, without limitation, the following departments: city council, ISD, ZBA, law department, and corporation counsel. I look forward to hearing from you.” On April 18, 2020, Ms. Anderson requested “a copy of all agreements, plans, memoranda, analyses, records, reports, complaints, correspondences including emails, and other documents and instruments provided by, sent to, cc’ing, or referencing Sandy Steele from March 1, 2016 through the date on which such records are provided to me. Please include the city council, ISD, ZBA, DPW, Landmarks, the law department and corporation counsel. Search terms should include, without limitation, Sandra Steele and sandy@steeleesq.com.” Ms. Anderson made her last request on April 20, 2020, for “a copy of all applications, permits, approvals, requirements, agreements, plans, measurements, memoranda, analyses, 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. SPR20/0730 Page 2 May 12, 2020 records, reports, complaints, correspondences including emails, and other documents and instruments related to 4 Pinckney Street, Boston, MA from January 1, 2020 through the date on which all such documents are provided to me. Please include the city council, ISD, ZBA, DPW, Landmarks, the law department and corporation counsel. Search terms should include, without limitation, “Four Pinckney”, “4 Pinckney”, “4 Pinkney” (misspelling intentional), and “Four Pinkney” (misspelling intentional). Subsequent to the opening of this petition, Ms. Anderson sent two separate responses to this office on May 5 and May 6, 2020, that addresses the City’s petition. 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. 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 May 5, 2020, petition, the City requests “the Supervisor to permit the City additional time needed to comply with [the] request.” The City explains “[a]n email search for each of these request yields over 1,000 emails, containing over 1,000 attachements. It will take

Shawn A. Williams, Esq. SPR20/0730 Page 3 May 12, 2020 approximately 1 minute to review each of these emails to determine whether each is responsive or public. This does not include a review of individual departments identified in your request to confirm whether any non-email records exist that are responsive to your request.” In her response to the City’s petition, Ms. Anderson contends “[t]he three separate requests which Mr. Williams seems to have consolidated for purposes of his petition are each narrowly tailored, specific and request records from specific time periods… [w]ith respect to R000033-041720, Mr. Williams states that there are over 1,000 emails and over 1,000 attachments regarding 4 building permits, 2 ZBA appeals and 2 certificates of occupancy, all of which relate to either a single family home at 4 Pinckney St or a 2 family home at 197-199 N St. That is a lot of correspondence regarding a total of 8 documents related to 2 small properties.” Ms. Anderson further posits “[w]ith respect to Request 2 R000037-042120, given (1) the small number of actually responsive emails from my prior public records request regarding the same property over the 5 year period in which the permits and certificate of occupancy were obtained and the expansion was built, and (2) Mr. Williams’ statement when we spoke in February, 2020 that ISD advised that nothing was going on with respect to this property, I’d appreciate confirmation that there really are more than 1,000 emails and more than 1,000 attachments related to this property since January 1, 2020.” I find that in light of the need to search for the records, efforts undertaken by the municipality in fulfilling the current requests and previous request, 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 5 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). 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)(iii); 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

Shawn A. Williams, Esq. SPR20/0730 Page 4 May 12, 2020 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, 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 May 5th petition, the City requests “the Supervisor to permit the City of Boston to assess a fee for the search, review, and segregation of records responsive to your request.” The City states “[r]esponsive records are likely to contain attorney-client privileged communications.” In her response, Ms. Anderson contends “[w]ith respect to Request 2 R000037- 042120…[t]hese records do not seem more likely than most to contain information subject to attorney-client privilege, so it is unclear why Mr. Williams asserts this concern with respect to

Shawn A. Williams, Esq. SPR20/0730 Page 5 May 12, 2020 this request…[w]ith respect to Request 3 R000038-042120, the attorney at issue represents parties in matters where their interests are adverse to the City, such as, in the matter of 4 Pinckney, getting approval for expansions made without Certificates of Appropriateness from Landmarks. Unless Mr. Williams shows that Sandy Steele represents the City (which I do not believe to be the case), her communications with the City would not be subject to attorney-client privilege.” With respect to the request Ms. Anderson submitted on April 17, 2020, the City did not demonstrate that it submitted its May 5, 2020 petition within ten business days after receipt of the request. In light of the fact the City has not demonstrated it submitted a timely petition for this request, permission to charge for time spent segregating or redacting responsive records cannot be granted at this time. 950 C.M.R. 32.06(4)(g). Given the nature of the request, which includes communications of the City law department, 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 5 business days as described above. Further, for the April 18th and April 20th requests, 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 When preparing a fee estimate for the provision of the requested records, the City is advised to provide a detailed explanation to the requestor indicating why this estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). Please note, the Supervisor does not possess the authority to permit the City to charge for the first two hours of employee time. The City must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. The City must provide a response to Ms. Anderson within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Anderson may appeal the City’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Ms. Anderson 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).

Shawn A. Williams, Esq. SPR20/0730 Page 6 May 12, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Alyssa Anderson