Emiliano Falcon-Morano v. Boston, City of - Law Department (SPR 20201263)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 3, 2020 SPR20/1263 Shawn A. Williams, Esq. Records Access Officer City of Boston 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) 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 July 14, 2020, Emiliano Falcon requested fifteen categories of records concerning “the overall operation of the regional license plate reader system, but also the locations of the cameras.” 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 (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). 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. SPR20/1263 Page 2 August 3, 2020 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 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

Shawn A. Williams, Esq. SPR20/1263 Page 3 August 3, 2020 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 28, 2020 petition, the City requests “the Supervisor to permit the City additional time needed to comply with [the] request.” The City expressed “[t]his is a very large request that will require interaction with several departments. It is not yet clear what records exist that are responsive to this request. Some portions of this request may require research that is not required by the public records law... It is estimated it will take at least fifteen (15) business days from the date of receipt of payment to provide any responsive records.” Although the City expressed, “[s]ome portions of this request may require research that is not required by the public records law,” it is unclear why this request requires additional time beyond the statutory allotment. The City indicates “[p]ortions of records responsive to [the] request may contain information that is exempt from disclosure.” The City cites Exemption (c) stating, “[a]ny responsive records are likely to contain information that consists of intimate details of a highly personal nature regarding specific individuals. Such information will be reviewed and redacted pursuant to the second clause of the privacy exemption to the public records law. G. L. c. 4, § 7 (26) (c).” The City cites Exemption (f) stating, “[a]ny responsive records are likely to contain information regarding ongoing investigations, including the identity of voluntary witnesses or informants. Such information will be reviewed and redacted pursuant to investigatory exemption to the public records law. G. L. c. 4, § 7 (26) (f). Further, the City states, “[a]ny responsive records are likely to contain attorney-client privileged communications.” Although the City expressed “[p]ortions of records responsive to [the] request may contain information that is exempt from disclosure,” it has not provided information regarding what records it intends to produce and why such records are likely to contain exempy information.

Shawn A. Williams, Esq. SPR20/1263 Page 4 August 3, 2020 Conclusion I find that in light of the lack of explanation in the City’s petition, the City has not established good cause to warrant an extension of additional time to respond to this request. With respect to the City’s petition to assess fees, I find the City has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Please note, however, this does not preclude the City from charging for segregation and redaction that is required by law. 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. Falcon within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Falcon may appeal the City’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Emiliano Falcon