Jeanne Holmes-Kireilis v. Brockton, City of - Law Department (SPR 20201292)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 10, 2020 SPR20/1292 Megan D. Bridges Assistant City Solicitor Law Department City of Brockton 45 School Street - City Hall Brockton, MA 02301 Dear Attorney Bridges: I have received your petition on behalf of the City of Brockton (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 July 18, 2020 and July 19, 2020, Jeanne Holmes-Kireilis requested four categories of records pertaining to the FY21 budget from July 1, 2019 to present. 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. 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

Megan D. Bridges, Esq. SPR20/1292 Page 2 August 10, 2020 G. L. c. 66, § 10(c). 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 31, 2020 petition, the City requests “…that the City be granted one hundred twenty (120) days to comply following the requestor’s payment of the estimated fee.” The City indicates “…it will take an attorney approximately 530 hours to compile, review and redact the already identified approximately 27,642 emails that may be responsive to the public record request.” The City explains “[d]ue to the scope of the request and the financial impacts of the Covid19 Pandemic, the requested documents concerning the budget can cover a wide range of subject matters and the City is unable to determine precisely which redactions will be required until an attorney has reviewed all of the emails requested. Certain City email addresses are likely to contain personnel matters, matters that elicit privacy concerns, matters of public safety, and communications protected by attorney-client privilege.” The City includes statutes under Exemption (a); attorney-client privilege and work product doctrine; as well Exemptions (b), (c), (d), (f), (n), and (o) for potential redaction of the requested records. The City further explains “…complying with the request…will take this office nearly 15 weeks of work. This task will unduly burden the Brockton Law Department, as it will occupy one of only three full-time attorneys for that time period, significantly hindering the Department’s ability to timely address its other day-to-day responsibilities.” I find that in light of the need to collect and segregate the request, the potential scope of redaction required to prevent unlawful disclosure, as well as the City’s capacity in fulfilling the current request, the City has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). I hereby grant the City an extension of 30 business days beyond the time allowed in 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 may begin to run once the City receives payment. 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).

Megan D. Bridges, Esq. SPR20/1292 Page 3 August 10, 2020 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 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).

Megan D. Bridges, Esq. SPR20/1292 Page 4 August 10, 2020 The City explains the provided hours is “based on an estimated review time of one minute per email and an hour to meet with the departments that have potentially responsive records.” The City indicates given the applicable exemptions “the person charged with this task must be able to determine which information may be exempt by statute. For these reasons, this task must be performed by an attorney. Further, since the attorney reviewing the emails will not be able to redact the emails in their current electronic form, they will first be printed in hard copy…the City must assess a fee for the time spent compiling, segregating, and redacting the emails.” The City notes “the fee estimate provided to the Requestor likely will not cover the actual cost incurred by the City to comply with this request, as the lowest paid attorney who has the necessary skill required to perform these redactions is in excess of the statutory maximum hourly rate of $25.00. Additionally, the City has already undertaken hours of work to comply with this request, which it is not request a fee for performing.” The City also indicated it “…responded to the Requestor explaining the good faith estimate…” and provided a copy of said response. In light of the City’s petition, I find the City has met its burden to explain how the request cannot not be prudently completed without redaction or segregation. Conclusion Accordingly, I find the City has established good cause for a time extension of 30 business days as described above. Further, in light of the City’s petition, I find the City has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the City may assess a fee for segregation and redaction. The parties are encouraged 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 agency to produce records sought more efficiently and affordably). Any fee estimate from the City must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Ms. Holmes-Kireilis 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).

Megan D. Bridges, Esq. SPR20/1292 Page 5 August 10, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Jeanne Holmes-Kireilis