Austin Siford v. Cambridge, City of - Office of the City Solicitor (SPR 20201068)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 7, 2020 SPR20/1068 Seah Levy Public Records Access Officer City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Seah Levy: I have received your petition on behalf of the City of Cambridge (City) seeking 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, it is my understanding that the City furnished a copy of this petition to the requestor. Id. In a letter dated June 17, 2020, Austin Siford requested, “the entirety of email conversations between officials of the Cambridge Police Department and City representatives, occurring between June 1, 2016 and December 1, 2016 regarding an inquiry into the implementation of body worn cameras for Cambridge Police Officers.” Petition 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 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 SPR20/1068 Page 2 July 7, 2020 (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). 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

Seah Levy SPR20/1068 Page 3 July 7, 2020 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). 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 July 1st petition, the City seeks permission to charge for “the actual time involved to segregate, review and redact the records requested by Austin Siford (‘Requester’) on 6/17/2020, in addition to the 4 hours estimated by the various departments involved in the search for these records….The City wrote to Mr. Siford by email on 6/24/2020, asking that he clarify or narrow this request. (see attached email) As currently worded, this request involves every City Employee and every staff member of the Police Department, and may result in an extremely large production with the need to review and redact as necessary. As of 7/1/2020, The City has not yet heard back from the Requester.” The City “estimates it will take twenty hours to review, redact, and segregate the email records requested, two of which will be waived pursuant to 950 CMR 32.07(m)(1), at a rate of $25.00 per hour for the lowest paid employee capable of reviewing and if necessary, redacting exempt information. Additionally, due to the time needed to review, redact and segregate records for this request, 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, commencing upon receipt of payment for this request.” This City posits, “the results of such email searches are often voluminous, with a large number of unresponsive emails present, as well as responsive emails that need careful review. The City has found the need to redact or withhold a variety of types of emails in similar search

Seah Levy SPR20/1068 Page 4 July 7, 2020 requests, including, but not limited to, the following: 1. Attorney-Client correspondence: departments frequently seek advice when developing policy, or when anticipating litigation, from the City Solicitor’s office, as may have been the case with any possible new police policy; 2. Personal information mentioned in the course of an email conversation, such as confidential medical information, or personnel information, about a City or Police Department employee. Exemption (c). 3. Inter-agency and intra-agency memoranda and letters regarding policy positions which are still being actively developed by City of Cambridge employees. Exemption (d); 4. Home 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. Exemption (o).” Conclusion I find the City has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the City an extension of 30 business days to furnish copies of records responsive to Mr. Siford’s request. See G. L. c. 66, § 10(c). To the extent possible, the City must provide responsive records on a rolling basis. With respect to the City’s petition to assess fees, I find that the City has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without segregation or redaction. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the City may assess a charge for the segregation and redaction of such exempt material. This office encourages Mr. Siford and the City 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). Any fee estimate by the City must be in compliance with this determination, the Public Records Law, and its Access Regulations. Please note, Mr. Siford 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: Austin Siford