Jonathan Goldman v. Waltham, City of - Mayor's Office (SPR 20201110)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 21, 2019 SPR 20/1110 Katherine Laughman, Esq. Assistant City Solicitor City of Waltham 610 Main Street Waltham, MA 02452 Dear Attorney Laughman: I have received a petition from Jonathan Goldman 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, Mr. Goldman requested: 1) “All Waltham policies, regulations, and procedures related to the use of force, use of pepper spray, use of tasers, and use of restraining techniques as it relates to the Waltham Police Department; and 2) All correspondence, including but not limited to emails, between the Waltham Mayor’s Office and any members of the Waltham Police Department since the death of George Floyd on May 25, 2020.” The City responded to Mr. Goldman on June 22, 2020, providing a fee estimate for the production of responsive records. Unsatisfied with this fee estimate, Mr. Goldman petitioned this office and this appeal, SPR20/1110, was opened as a result. Fee Estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 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 Laughman, Esq. SPR20/1110 Page 2 July 21, 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 (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 fewer. 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 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The City’s Fee Estimate In its June 22nd fee estimate, the City estimates that it will require 10 hours to search for and produce responsive records, for a total cost of $200. The City additionally indicates that it has identified approximately 73 responsive emails. On July 16, 2020, the City provided a supplemental response including additional information regarding the estimate and the work to be performed. Fees to search for, compile, segregate, redact or reproduce responsive records In its fee estimate, the City approximates that it will require 10 hours to search for and produce the requested records, broken down across three City employees. In accordance with 950 C.M.R. 32.07(2)(m)(1), the City states that it has waived the cost for the first 2 hours of time. Although the City’s July 16th response provides additional information regarding the tasks it intends to perform, it remains unclear why the City requires 10 hours of time to produce the responsive records. In particular, where it appears that the City has identified 73 responsive emails, it is unclear why it requires two hours to “formulate and run” 4-5 queries to produce responsive records. It is further unclear why the City requires two hours to perform “a comprehensive review of all current and prior policies, regulations, and procedures” in order to respond to the request. The City must clarify these matters. In its July 16th response, the City states that it has not included in its estimate any time spent reviewing the records for potential redactions. Employee time The City’s estimate indicates that it is charging $25 per hour for time spent responding to the request. In his appeal petition, Mr. Goldman disputes whether the individuals identified in the

Katherine Laughman, Esq. SPR20/1110 Page 3 July 21, 2020 City’s fee estimate are the lowest-paid City employees capable of performing the work. In its July 16th supplemental response, the City provides an additional explanation regarding the employees who will perform the work, explaining that any City employee with the authorization to perform the work receives a salary in excess of $25 per hour. Waiver of fees In his appeal petition, Mr. Goldman requests that the City waive the fees associated with the production of these records, due to the public interest involved in the subject matter and his financial ability to pay the fee. Please be advised the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request. Under the Public Records Law, the records access officer may waive or reduce the amount of any fee charged upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. See G. L. c. 66, § l0(d)(v); see also 950 C.M.R. 32.07(2)(k). In its estimate, the City suggests that Mr. Goldman may be able to modify his request to lessen the amount of time required to complete the request. This office encourages the parties 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). Conclusion Accordingly, the City is ordered to provide Mr. Goldman with a revised estimate, to be provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. 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: Jonathan Goldman