Matthew Gregor v. Boston, City of - Law Department (SPR 20201045)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 2, 2020 SPR20/1045 Shawn 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 15, 2020, Matthew Cregor requested: 1. Data on each school-related arrest conducted during the 2018-19 school year, per DESE’s collection; 2. Data on each school-related arrest and referral to law enforcement conducted during the 2017-18 school year, per the U.S. Department of Education’s Civil Rights Data Collection for that year; Copies of any police reports or school incident reports related to each school-related arrest or referral to law enforcement described in the above requests; 3. Data on each Child Requiring Assistance (CRA) application filed by BPS during the 2017-18 and 2018-19 school years; 4. A copy of any active or prior memorandum of agreement between BPS and BPD regarding police placement or activity in BPS; 5. A copy of any active or prior standard operating procedures developed with the BPD and/or other law enforcement agencies regarding police placement or activity in BPS; and, 6. Any records instructing or informing BPS and BPD personnel of, or otherwise describing, data reporting requirements and procedures for complying with G.L. c. 71 § 37P(b). For each school-related arrest, referral to law enforcement, and CRA application, please include the school, demographic, and incident information described in DESE’s School Safety and Discipline Report Data Handbook v. 20.0. 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. SPR20/1045 Page 2 July 2, 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 30, 2020, petition, the City requests “the Supervisor of Records to permit the City additional time to process [the] request...” The City indicates that “[r]esponsive records are likely to contain attorney-client privileged communications.” Additionally, “responsive records likely contain student record information. G. L. c. 4, § 7 (26) (a); G. L. c. 71, § 34D. The records likely contain medical information or other information that would constitute an intimate detail of a highly personal nature. G. L. c. 4, § 7 (26) (c).” I find that in light of the need to collect and segregate the request, as well as the potential scope of redaction required to prevent unlawful disclosure, 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

Shawn A. Williams, Esq. SPR20/1045 Page 3 July 2, 2020 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. 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,

Shawn A. Williams, Esq. SPR20/1045 Page 4 July 2, 2020 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 June 30th petition, the City requests that the “Supervisor to permit the City to assess a fee for the provision of records responsive to your 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, it is unclear whether a timely fee petition was submitted. Consequently, 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 Mr. Cregor’s within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Cregor may appeal the City’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Mr. Cregor 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: Matthew Cregor