Audrey Johnson v. Waltham, City of - Mayor's Office (SPR 20201109)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 21, 2020 SPR20/1109 Katherine D. Laughman, Esq. Assistant City Solicitor City of Waltham Law Department 119 School Street Waltham, MA 02451 Dear Attorney Laughman: I have received the petition of Audrey Johnson appealing the response of the City of Waltham (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Johnson requested: 1. All correspondence between and among police officers and employees of the [City of] Waltham’s Police Department (Department), in the possession, control and/or custody of the City of Waltham, relating to the recent protests for black lives, [race] relations, and use of force policies since the death of George Floyd on May 25, 2020; and 2. Demographic information of currently employed police officers with the Department and the [City], if the City has such information already reduced to writing. Ms. Johnson seeks the records in electronic format and if possible that the City email the records, or on a CD-ROM, or alternatively in a text-searchable, static-image format (PDF). In addition, Ms. Johnson states, “[r]ecords should include but not limited to electronic correspondence transmitted via computer, laptop, Blackberry, iPhone, and other email devices, and should not be limited to any emails in which an employee was the direct recipient, CC recipient, BCC recipient and/or listserv recipient.” On June 22, 2020, the City provided Ms. Johnson with a numerical breakdown of the Department’s personnel according to race and gender, and the City provided Ms. Johnson with a fee estimate of $675.00 to provide her with the responsive electronic communication records. As a result of the estimate, Ms. Johnson petitioned the Supervisor of Records (Supervisor) and this appeal was opened. 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

Katherine D. Laughman, Esq. SPR20/1109 Page 2 July 21, 2020 Waiver of fees In her June 8, 2020 request, Ms. Johnson asked the City to waive all fees due to the request serving an important public purpose. She also asks that if fees are assessed, that she be given the opportunity to inspect records and decide which portions to copy, and the option to restrict the time frame on the requested documents to reduce any potential costs. In her July 7th petition to the Supervisor, Ms. Johnson asks the Supervisor to direct the City to provide the responsive and non-exempt records at no cost; or in the alternative, provide a new estimate of fees that is both reasonable and consistent with the Public Records Law. See 950 C.M.R. 32.07(2)(k)(l-3). In addition, Ms. Johnson indicates in her July 7th petition that she does not have the financial means to pay such a fee. Ms. Johnson is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order that a record custodian do so. Fee estimates - municipalities 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) 2 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 how 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). The City’s June 22, 2020 fee estimate The City indicates that it is assessing a total fee of $675.00 for 29 hours of search and review at $25.00 an hour; which breaks down to 4 hours of search, and 25 hours to review emails for responsiveness. The City’s estimate reveals that 29 hours of time is necessary; however, the City reduced the 2 hours of time from 29 hours to 27 hours, as required by the Public Records Law. See G. L. c. 66, § 10(d)(iii).

Katherine D. Laughman, Esq. SPR20/1109 Page 3 July 21, 2020 In its fee estimate, the City indicates that the IT Department conducted a search that took four (4) hours at $25.00 per hour to locate the responsive emails of the Police Department, using the search terms that Ms. Johnson indicated in her request. The City’s search revealed over 1,000 emails containing the terms Ms. Johnson identified; such as, protest, black lives, race, relations, force and policies. I note that Ms. Johnson did not provide this office with a copy of any other communication pertaining to her search terms other than her June 8th request to the City. While the identified person in the IT Department has an hourly rate of $68.45, the City reduced the fee to $25.00 per hour, as required by the Public Records Law. See G. L. c. 66, § 10(d)(iii). In its estimate, the City indicated that the individual employee in the IT Department is the lowest paid individual capable of conducting the search for the responsive records. See 950 C.M.R. 32.07(2)(i). The City asserts, “[t]he Department will also be required to review each document to determine its responsiveness and identify duplicative records.” It is unclear how the Public Records Law allows a government entity to charge for review of records to identify records for duplicates. G. L. c. 66, § 10(d)(iii) (municipalities may not assess a fee for the employee time to search for, compile, segregate, redact or reproduce the records). The City states, “…it is anticipated that the [Department] will be able to produce most of the records electronically, subject to withholding or redaction…if there are any responsive records that do contain exempt or otherwise privileged information, and if there are any documents that may only be redacted manually and not electronically (and thus must be printed prior to redaction), copying charges will apply at the rate of $.05 per page.” In its June 22nd estimate, the City indicates that where permitted by law, the records may be either withheld or redacted under any of the exemptions in the Public Records Law, other provisions of the law, and/or common law privileges, such as the attorney-client privilege. However, to the best of my knowledge, the City did not file a petition with the Supervisor to allow the City to charge for segregation and/or redaction of the records other what is allowed by law. See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The City assessed a fee of 1.5 minutes per 1000 emails to review the emails to determine responsiveness at a total of 25 hours. However, it is unclear whether the City is segregating the emails for exempt material that will be redacted. I find the City’s June response is uncertain regarding the tasks undertaken for its estimate of 1.5 minutes of time per 1000 emails, which totals of time at $25.00 per hour. In addition, the City informed Ms. Johnson that due to the Covid-19 virus resulting in low staffing levels, the City will provide the responsive records within fifteen (15) business days of receiving payment of the fee. See G. L. c. 66, § 10(b)(vi). The City suggested that Ms. Johnson may want to modify or narrow her request regarding the email records, which may reduce the costs.

Katherine D. Laughman, Esq. SPR20/1109 Page 4 July 21, 2020 July 16, 2020 response to appeal SPR20/1109 In response to this appeal, the City provided a July 16, 2020 response. The City reiterates that, “[t]he City remains ready and willing to produce responsive, non-exempt records in accordance with G. L. c. 66, § 10 upon the payment of the requested fee.” In relation to Ms. Johnson’s request number 1 the City asserts, “…it has been estimated that the time required to respond to [Request Number 1] will exceed two hours. By email correspondence dated June 30, 2020, the Law Department offered to speak directly with [Ms. Johnson] concerning her [r]equest and potential reduction in scope.” The City further asserts, “…it has imposed reasonable hourly costs for responding to the [r]equest, and has provided an accurate breakdown of the time required for the lowest-paid individuals capable of reviewing and producing the information, which in all cases results in the statutorily reduced rate of $25 per hour.” With regard to the IT Director’s task of searching for and compiling the responsive emails, the City contends, “…conducting searches of the City emails, including the Department, is the task that falls under the responsibilities of the City’s IT Director. Due to the required technical familiarity with the City’s email system, the only other individual within the City that would potentially be capable of compiling the requested information is the Assistant IT Director, who has an hourly rate of $56.53. Thus, regardless of whether the search is done by the IT Director or the Assistant Director, the City would be reducing the rate charged to $25 in both instances.” The City asserts that the emails to and from the City’s Police Chief will likely contain sensitive and confidential information, only high level command staff would be authorized to review these communications. The City posits that, “[t]he high level command staff would be limited to the Deputy Police Chief, or any one of the Division Commanders holding the rank of Captain. At present, the lowest paid individual with the rank of Captain has an hourly rate of $64.11 per hour.” In its June 22nd estimate, and reiterated in this July 16th response, the City explained it will only assess a $25.00 per hour rate, the maximum allowed by the Public Records Law. See G. L. c. 66, § 10(d)(iii). -- The City asserts that the following hours are necessary to complete the task of searching for and compiling the records: • 2.5 hours (IT to formulate custom queries from search terms. (25 minutes to formulate and run each search query); • 30 minutes to download all attachments or images and consolidate and place emails responsive into a file format to allow for review by the Deputy Police Chief; • 25 hours to determine responsiveness and electronically segregate responsive emails and/or print for purposes of applying redactions. (Note: the City states it is willing to reduce the average review time per email to 1 minute, which would reduce the total cost of response from $625 to $466.50);

Katherine D. Laughman, Esq. SPR20/1109 Page 5 July 21, 2020 • 30 minutes to place the emails (including those that were subject to redaction) into an electronic format by the IT Department and relayed to the [r]equestor. The City has stated that it reserves the right to redact where necessary. The City is advised that it may not assess a fee for segregation and redaction of the records unless the redactions are required by law. See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The City’s July 16th response states, “…the City anticipates that the emails may contain personnel information; inter- and intra-agency emails related to policy positions being developed by the [Department] protected under exemption (a), and privileged attorney-client communications protected under the common law attorney-client privilege.” While the City may assess a fee for segregation and redaction of information that is required by law, it is unclear how much of the assessed 25 hours of segregation and redaction time will be devoted to segregation and redaction of records that are required to be redacted by law. Also unclear from the City’s June and July responses is the time to search for and compile records other than email records, such as text messages or other electronic communications that may have been sent during the time period indicated by Ms. Johnson in her request. The City must clarify whether it has possession, custody and/or control of further records responsive to Ms. Johnson’s June 8th request. While the City states that it has made overtures to Ms. Johnson to provide assistance in modifying the request, the City has not offered any suggestions on how she might modify or narrow her request. I encourage the parties to communicate and work together to resolve the outstanding issues involved with Ms. Johnson’s records request, including a modification and/or narrowing of the request if it will reduce the costs in providing records. Conclusion Accordingly, the City is ordered to provide Ms. Johnson with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Audrey Johnson