Peter Hahn v. Cambridge, City of - Office of the City Solicitor (SPR 20200891)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 11, 2020 SPR20/0891 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 May 20, 2020, Peter Hahn requested 16 categories of records pertaining to King Open School, including several categories of records relating to the principal. On May 25, 2020, Mr. Hahn emailed the Department to clarify and supplement one category of his request. Subsequent to the opening of this petition, Mr. Hahn sent six separate responses to this office on June 4, June 6, and June 9 2020, that addresses the Department’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; 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 SPR20/0891 Page 2 June 11, 2020 (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). Please note, a business day does not include a weekday where a custodian’s office is unexpectedly closed. 950 C.M.R. 32.02. In its June 4th petition, the Department states “due to the time needed to review, redact and segregate records for this request in addition to coordinating with the various departments which may provide additional records, pursuant to 950 CMR 32.06 (4)(e) the undersigned 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, and potentially more, commencing upon receipt of payment for this.” The Department states “in addition to the 275 hours estimated by the various departments involved in the search for these records...[c]urrently, the City estimates it will take thirty hours to review, redact, and segregate the email and electronic records.” The Department explains “[b]ased on similar past requests, significant time will be required to determine the correct mailboxes and accounts to be searched, as well as to determine any additional search terms, or combinations of keywords that might lead to responsive records. The results of such searches are often voluminous, with a large number of unresponsive emails present, and therefore require careful review.” The Department further explains “[a]t present, due to the ongoing situation involving COVID 19, the City of Cambridge Schools have been closed. The majority of the records requested cannot be accessed remotely. In order to undertake this response, the school and administrative offices will need to be opened, and the documents that have been requested will require a physical presence by various staff members in order to be searched for, collected, scanned, and transferred for review…[a]dditionally, it has been determined that item 16 of the request will require files to be called out of cold storage to determine if responsive documents exist.”

Seah Levy SPR20/0891 Page 3 June 11, 2020 I find that in light of the capacity of the Department to produce the records without the extension; 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 30 business days beyond the statutorily allowed 25 business days upon the receipt of payment for request. G. L. c. 66, § 10(c)(i)-(v); -se-e -a-ls-o 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. 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 petition, the Department “requests that the City be permitted to charge the 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” citing Exemption (a), (c), (d), and (o). The Department explains Exemption (a) redactions could include “Confidential Student Records are frequently present in emails between members of the School Department.” For Exemption (c), the Department explains redactions may include “[p]ersonnel records: project

Seah Levy SPR20/0891 Page 4 June 11, 2020 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 of students at the King Open School…” 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.” The Department indicates “[i]n addition to the sections of this request that involve emails, the requestors have requested voluminous numbers of records, which are likely to contain private information and student record information with regard to students…[t]hese records will require careful examination to ensure that no student records are released in the response.” The Department also states “[t]he request also asks for records pertaining to the King Open School principal, and King Open School staff…as well as…informal and formal complaints, grievances, and appeals, filed with the Cambridge Public Schools (including Human Resources), the City of Cambridge, the Cambridge School Committee, and/or any other agency or division within the City of Cambridge, or filed with an outside individual, agency, or organization…[t]hese documents are likely to contain records which include both student records, and confidential personnel information, which will require careful segregation and redaction pursuant to exemption (c) of the Public Records law, as well as confidential communications which fall under the attorney-client privilege.” 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). This office encourages Mr. Hahn and the Department 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). Conclusion Accordingly, I find the Department has established good cause for a time extension of 30 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. When preparing a fee estimate for the provision of the requested records, the Department 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). Specifically, the Department is advised to clarify the amount of time necessary to

Seah Levy SPR20/0891 Page 5 June 11, 2020 perform each task. The Department must provide a response to Mr. Hahn as soon as practicable after receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Hahn may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Mr. Hahn 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. Murray Supervisor of Records cc: Peter Hahn