Joel Lewin v. Cambridge, City of - Law Department (SPR 20200789)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 21, 2020 SPR20/0789 Seah Levy Public Records Access Officer Law Department Cambridge City Hall 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received your petition on behalf of the City of Cambridge Law Department (Department) seeking an extension of time to furnish copies of a requested record. G. L. c. 66, § 10(c). The Department is also seeking to charge for segregation and redaction of the records. G. L. c. 66, § 10(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c), (d)(iv)(2). On April 30, 2020, Joel Lewin requested records related to an MBTA contract. 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 SPR20/0789 Page 2 May 21, 2020 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 14th petition, the Department states “due to the time needed to review, redact and segregate records for this request in addition to coordinative with various departments which may provide additional records…City of Cambridge Public Records Access Officer requests that the City be provided 30 business days in addition to the statutory 10 business days to respond, commencing upon receipt of payment for this request.” The Department states “in addition to the 12 hours estimated by the various departments involved in the search for these records…the City estimates this will take ten hours to review, redact, and segregate the email records requested…” The Department explains “[a] great deal of time may be required to track down and ensure all records…have been located, in all formats and draft versions requested. Coordination with various Departments and personnel will be required.” The Department further explains “[b]ased on similar past requests, significant time will also be required to determine the correct mailboxes and accounts to be searched, as well as to determine any additional search terms…that might lead to responsive records.” I find that in light of the broad scope of the request; and the need to search for, segregate, and redact the requested records, the Department has established good cause to permit an extension of time of 20 business days beyond the statutorily allowed 25 business days upon the receipt of payment for request. G. L. c. 66, § 10(c)(i)-(v); see also G. L. c. 66, § 10(b)(vi) (a ----- records access officer may identify a reasonable timeframe in which it shall produce the public records sought; provided, that for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request). Petitions for ability to assess fees 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.

Seah Levy SPR20/0789 Page 3 May 21, 2020 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). The 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, the fee is necessary such that the request could not have been prudently completed without the redaction, segregation or fee in excess of $25 per hour, and the amount of the fee is reasonable and the fee is not designed to limit, deter or prevent access to requested public records. 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. Id. In its May 14th petition, the Department “requests that the City be permitted to charge actual time involved to segregate, review and redact the records…at a rate of $25.00 per hour for the lowest paid employee capable or reviewing and if necessary, redacting exempt information.” The Department explains it has “found the need to redact or withhold a variety of types of emails in similar search requests” including attorney-client privilege, as well as Exemption (a), (c), (d), and (o). The Department explains Exemption (a) redactions could include “Tax ID Numbers, checking account numbers, and routing numbers, often included in invoices or other financial records.” For Exemption (c), the Department explains redactions may include “[p]ersonnel records: project information is often mentioned in connection with employee reviews and reports… [m]edical Information: this information may be that of City of Cambridge Employees, or residents of the City of Cambridge...” Under Exemption (d), the Department explains redactions may include “[i]nter-agency and intra-agency memoranda and letters regarding policy positions which are still being actively developed by City of Cambridge employees.” And lastly, the Department cites Exemption (o) for potential redaction of “[h]ome phone or personal cell phone numbers are occasionally mentioned by City employees who are working from home or traveling to a meeting or work location.” I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction, segregation or by assessing a fee of $25.00 per hour. See G. L. c. 66, § 10(d)(iv).

Seah Levy SPR20/0789 Page 4 May 21, 2020 Conclusion Accordingly, I find the Department has established good cause for a time extension of 20 business days as described above. Further, in light of the Department’s petition, I find the Department 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 Department may assess a fee for segregation and redaction. Please note, Mr. Lewin 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. Murray Supervisor of Records cc: Joel Lewin