Zoe Martin v. Boston, City of - Law Department (SPR 20201057)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 7, 2020 SPR20/1057 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). Specifically, on June 16, 2020, Zoe Martin of Peridot Family Law, requested identified body camera footage. 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

Shawn A. Williams, Esq. SPR20/1057 Page 2 July 7, 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). 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

Shawn A. Williams, Esq. SPR20/1057 Page 3 July 7, 2020 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). Current Petition In its June 30, 2020, petition, the City requests “the Supervisor to permit the City additional time to process [the] request and to provide an estimate of fees associated with [the] request.” The City explains that “[a]n email search for these requests yields over XX emails, containing over XX attachments. It will take approximately one minute to review each of these emails to determine whether each is responsive and public. This does not include a review of the individual departments identified in [the] requests to confirm whether any non-email records exist that are responsive to [the] requests.” It is unclear why additional time is needed beyond the time allowed in G. L. c. 66, § 10(b)(vi), which provides that a municipality may provide a timeframe not to exceed 25 business days to produce responsive records. Accordingly, I find the City has not demonstrated good cause for an extension of time to produce the requested records. G. L. c. 66, § 10(c)(vi). Additionally, 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 [the] request. Stating that “[w]hile the hourly rates of the 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.” The City further explains that “[p]ortions of records responsive to [the] request may contain information that is exempt from disclosure.” Further stating that “[a]ny responsive records must be reviewed to determine whether it contains a description of medical condition or any intimate details of highly personal nature. G. L. c. 4, § 7 (26)(c). It is unclear whether

Shawn A. Williams, Esq. SPR20/1057 Page 4 July 7, 2020 disclosure of any responsive record would be harmful to active and ongoing investigative efforts. G. L. c. 4, § 7 (26)(f).” Given that the request appears to be for certain body camera footage and the City references the search and review of emails and email attachments in its petition, it is unclear whether the City’s request to assess fees for segregation and redaction applies to the responsive body camera footage. I find the City has not met its burden to explain how the request cannot not be prudently completed without assessing a fee for segregation and redaction. Conclusion In light of the above, the City’s petition for an extension of time and permission to charge for time spent segregating or redacting responsive records cannot be granted at this time. Sincerely, Rebecca S. Murray Supervisor of Records cc: Zoe Martin