Jessie Rossman v. Boston, City of - Law Department (SPR 20200998)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 1, 2020 SPR20/0998 Shawn A. Williams, Esq. City of Boston Public Records Division 1 City Hall Square, 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 June 9, 2020, Attorney Jessie Rossman requested: 1. All records describing, discussing, containing, or reflecting communication about potential deployment of federal agents to Massachusetts since May 24, 2020, including communications: a. Within the Mayor’s Office; b. Between the Mayor’s Office and any other state or local entity; and c. Between the Mayor’s Office and the Drug Enforcement Agency, Federal Bureau of Prisons, US Marshals, Customs and Border Protection, Transportation Security Administration, Federal Bureau of Investigation, Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Homeland Security, and/or other federal agencies. 2. All records describing, discussing, containing, or reflecting communication regarding the involvement of any federal agents in Massachusetts demonstrations since May 24, 2020, including communications: a. Within the Mayor’s Office; b. Between the Mayor’s Office and any other state or local entity; and c. Between the Mayor’s Office and the Drug Enforcement Agency, Federal Bureau of Prisons, US Marshals, Customs and Border Protection, Transportation Security Administration, Federal Bureau of Investigation, Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Homeland Security, and/or other federal agencies. 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. SPR20/0998 Page 2 July 1, 2020 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). Extension of time to produce responsive records In its June 24, 2020, petition, the City requests “the Supervisor permit the City addional time needed to comply with [this] request.” The City indicates that “[p]ortions of records responsive to your request may contain information that is exempt from disclosure.” The City goes on to say that responsive records are “likely to contain attorney-client privileged communications.” The City further emphasizes that “any existing responsive records may contain information associated with active or ongoing investigatory matters. G. L. c. 4, § 7 (26) (d), (f).” I find that in light of the need to collect and segregate the request, 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

Shawn A. Williams, Esq. SPR20/0998 Page 3 July 1, 2020 extension of 15 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). 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 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. 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).

Shawn A. Williams, Esq. SPR20/0998 Page 4 July 1, 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 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 June 24th petition, the City requests that the “Supervisor… permit the City to assess a fee for the provision of records responsive to [the] request.” The City states that “[w]hile the hourly rates of department personnel required to review the responsive records will likely 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.” Based on the petition provided to this office by the City, this office could not confirm the date of Attorney Rossman’s request. Given that it is unclear whether a timely fee petition was filed, I am unable to opine on the City’s petition to charge fees at this time. 950 C.M.R. 32.06(4)(g). Conclusion Accordingly, I find the City has established good cause for a time extension of 15 business days as described above. 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). The City must provide a response to Attorney Rossman within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Attorney Rossman may appeal the City’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Attorney Rossman 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: Jessie Rossman, Esq.