Ian Lovett v. Boston, City of - Law Department (SPR 20201373)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 20, 2020 SPR20/1373 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston 1 City Hall Plaza, 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 April 24, 2020, Ian Lovett requested “to inspect any and all emails sent or received by Kathryn R. Burton chief of staff to the mayor,, [sic] between April 7 of 2020 and April 21 of 2020, that contain either the word ‘test’ ‘tests’ or ‘testing…’” along with other specified search terms. 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 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. SPR20/1373 Page 2 August 20, 2020 (vi) the public interest served by expeditious disclosure. 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). In its petition, the City requests “the Supervisor of Records to permit the City additional time to process [the] request…” The City states “[a]n email search for each of these requests yields nearly 200 emails, containing over 150 attachments. It will take approximately one minute to review each of these emails to determine whether each is responsive and public.” The City explains “of records responsive to [the] request may contain information that is exempt from disclosure. Until a review of the records is conducted it is not clear what if any exemptions may apply to permit or require redaction or withholding….[r]esponsive records may contain attorney-client privileged communications…[t]he records may contain medical information regarding specifically identified persons, as well as other information the disclosure ofwhich would constitute an unwarranted invasion of privacy. G. L. c. 4, § 7 (26)(c). The records may also contain information regarding ongoing deliberations the disclosure of which may disrupt the deliberative process. G. L. c. 4, § 7 (26) (d).” I find that in light of the need to segregate the request, as well as the potential scope of redaction required to prevent unlawful disclosure, 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 10 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). 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

Shawn A. Williams, Esq. SPR20/1373 Page 3 August 20, 2020 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). In its petition, the City requests “the Supervisor of Records to permit the City…to provide an estimate of fees associated with your request.” The City states “[w]hile the hourly rates of department personnel required to review the responsive records will 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.” The City explains “of records responsive to your request may contain information that is exempt from disclosure. Until a review of the records is conducted it is not clear what if any

Shawn A. Williams, Esq. SPR20/1373 Page 4 August 20, 2020 exemptions may apply to permit or require redaction or withholding….[r]esponsive records may contain attorney-client privileged communications…[t]he records may contain medical information regarding specifically identified persons, as well as other information the disclosure of which would constitute an unwarranted invasion of privacy. G. L. c. 4, § 7 (26)(c). The records may also contain information regarding ongoing deliberations the disclosure of which may disrupt the deliberative process. G. L. c. 4, § 7 (26) (d).” Although the City states that the responsive records may contain attorney-client privileged communications, medical information, and information regarding ongoing deliberations, it has not provided information regarding why such records are likely to contain exempt information. Accordingly, I find the City has not met its burden to explain how the response could not be prudently completed without segregation or redaction. Please note, however, this does not preclude the City from charging for segregation and redaction that is required by law. Conclusion Accordingly, I find the City has established good cause for a time extension of 10 business days as described above. However, the City’s petition to assess a fee for segregation and redaction cannot be granted at this time. To the extent the responsive records contain the exempt information required by law, the City may assess a fee for segregation and redaction. 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 this estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). Mr. Lovett may appeal the City’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Mr. Lovett 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: Ian Lovett