Barbara Lerner v. Brockton, City of - Law Department (SPR 20201439)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 28, 2020 SPR20/1439 Megan D. Bridges, Esq. Assistant City Solicitor City of Brockton Brockton City Hall 45 School Street 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). Specifically, on August 8, 2020, Barbara Lerner requested the following records: “…any texts and emails from Mayor and [named] City Councilor, Mayor’s … staff, from their official City of Brockton email and phone. Additionally … any personal email and texts from Mayor and [named] Councilor from and to applicants of Marijuana dispensary licenses.” 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 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. SPR20/1439 Page 2 August 28, 2020 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). In its August 21, 2020 petition, the City requests an extension of time and be granted one hundred twenty (120) days to comply following the requestor’s payment of the estimated fee. The City explains that, “…[to] comply with the request (i.e. reviewing and redacting at least 103,386 emails at approximately one minute per email) [it] will take this office nearly 50 weeks of work.” Based upon the scope of the request, I find that the City has demonstrated good cause for an extension of time not to exceed thirty (30) business days to produce the requested records. G. L. c. 66, § 10(c) (Supervisor may grant a municipality a single extension not to exceed 30 business days). 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 agency to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public 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 the request is not for a commercial purpose.

Megan D. Bridges, Esq. SPR20/1439 Page 3 August 28, 2020 The second prong of the test is whether the fee represents an actual and good faith representation by the agency 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). The City submitted their petition on August 21, 2020 which is within ten business days after receipt of the request on August 8, 2020; therefore, the Petition is timely. See 950 C.M.R. 32.06(4)(g). Current Petition In its August 21, 2020 petition, the City “estimated that it will take an attorney approximately 1720 hours to compile, review and redact the already identified approximately 103,386 emails that may be responsive to the public record request.” The City asserts that, “… the estimated review time [is] one minute per email and an hour to meet with departments that have potentially responsive records.” The City opined that, “[t]he City’s good faith estimate for search, review and segregation for [the] public record request is $43,900 (1756 hours x $25.00 per hour). Additionally since the emails will need to first be printed on paper … the City estimates an additional cost of $5,169 (103,386 x $0.05 per page) to produce the records.

Megan D. Bridges, Esq. SPR20/1439 Page 4 August 28, 2020 Accordingly, the City’s good faith estimate for the cost of complying with the public record request is $49,069.00.” Additionally, the City states that, “to comply with this request, … 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.” The City explains that, “[c]ertain City email addresses are likely to contain personnel matters, matters that elicit privacy concerns, matters of public safety, and communications protected by the attorney-client privilege.” The City further cites the following exemptions under the Public Records Law will be necessary: Exemptions (b), (c), (d) (f), (n), (o), Criminal Offender Record Information Act and G .L. c. 66, § 10B. Given the scope of the request, I encourage Ms. Lerner and the City to communicate further in order to facilitate producing records efficiently and affordably. Ms. Lerner may wish to include applicable time periods or additional factors to enable the search to better be processed. G. L. c. 66, § l0(a)(i). The City must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or 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 or municipality to produce records sought more efficiently and affordably). Given that the public interest is served by limiting the cost of public access to the requested records, the City has not met its burden to explain that the fee represents an actual and good faith representation by the municipality to comply with the request. See G. L. c. 66, § 10(d)(iv). The City has not shown the fee is necessary; reasonable; or that the fee is not designed to limit, deter or prevent access to the requested records. Id. Therefore, permission to charge for time spent segregating or redacting responsive information that is not required by law cannot be granted. However, this does not preclude the City from charging for segregation and redaction that is required by law. Conclusion With respect to the City’s time petition, I find the City has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the City an extension of no more than 30 business days to furnish copies of records responsive to Ms. Lerner’s request. See G. L. c. 66, § 10(c). Further, I find the City may not assess a charge for the segregation and redaction that is not 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 this 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 is to provide a response to Ms. Lerner within five business days of receipt

Megan D. Bridges, Esq. SPR20/1439 Page 5 August 28, 2020 of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Lerner may appeal the City’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, the requestor 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: Barbara Lerner