Matthew Rocheleau v. Boston, City of - Law Department (SPR 20201117)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 8, 2020 SPR20/1117 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 22, 2020, Matthew Rocheleau of the Boston Globe requested: • A concise/summary officer history for each of the following employees; • The three most recent Communications and Development System Forms for each of the following employees; • A recent duty photo for each of the following employees; • A resume/bio/job application or similar document showing the work history and educational background for each of the following employees; • A roster or other document showing the unit/station where the following employees are based; • Any/all HR records on file for the following employees, including their dates of employment and credentials; • The summary page for any/all IA reports involving the following employees since Jan. 1, 2015: • Any/all documentation showing the work activity of the following employees during the week that ended Feb. 8, 2020 and during the week that ended May 9, 2020 -- when and where the employees worked and what they did -- including but not limited to timesheets, Form 26's, dispatch/administrative logs, any records of the assignments and details they worked, and any/all reports written or filed and citations written or filed; • Any/all emails or texts sent by the following employees during the week that ended Feb. 8, 2020 and during the week that ended May 9, 2020; 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. SPR20/1117 Page 2 July 8, 2020 • Detailed phone billing records – including logs of calls and texts made and received -- for the following employees during the week that ended Feb. 8, 2020 and during the week that ended May 9, 2020 (or those billing cycles as a whole, whichever is easier): o Lt. Timothy M. Kervin o Capt. John H. Danilecki o Sgt. Joseph M. Maguire o Lt. Sean P. Smith o Det. Waiman Lee. 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 July 7, 2020, petition, the City requests “the Supervisor of Records to permit the City additional time to process [the] request...” The City indicates that records may “contain

Shawn A. Williams, Esq. SPR20/1117 Page 3 July 8, 2020 medical information or other information the disclosure of which would constitute an unwarranted invasion of privacy.” Additionally the City asserts that “the records may contain information regarding ongoing investigations or may disclose the identity of voluntary witnesses. The records may also contain personnel information such as job application information. The records may contain the home addresses of public employees that are contained in a record that identifies the person as a public employee. G. L. c. 4, § 7 (26) (c), (f).” The City requests an extension of “at least 15 business days after the payment of any fees…” Given that the City has not demonstrated it requires time beyond the 25 business days to produce records, as allowed by the statute, I find it is unnecessary to opine on this portion of the City’s petition. G. L. c. 66, § 10(b)(vi) (a municipality may provide a timeframe not to exceed 25 business days to produce responsive records). Please note the time will begin to run upon payment of any fees. G. L. c. 66, § 10(c). 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).

Shawn A. Williams, Esq. SPR20/1117 Page 4 July 8, 2020 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, 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 July 7th petition, the City requests that the “[s]upervisor 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 appears that Mr. Rocheleau’s request was submitted on June 22, 2020. The City has not demonstrated the submission of a timely fee petition. 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 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 the 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. Rocheleau’s within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Rocheleau may appeal the City’s fee estimate within ninety days. See 950 C.M.R. 32.08(1).

Shawn A. Williams, Esq. SPR20/1117 Page 5 July 8, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau