Jonathan Brown v. Cambridge, City of - Law Department (SPR 20201531)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 4, 2020 SPR20/1531 Seah Levy Records Access Officer City of Cambridge Law Department City Hall 795 Massachusetts Ave. Cambridge, MA 02139 Dear Ms. Levy: I have received your petition on behalf of the City of Cambridge (City) requesting permission to charge for time spent segregating or redacting responsive records under G. L. 66, § 10(d)(iv), and seeking an extension of time to furnish copies of requested records. See G. L. c. 66, § 10(c). As required by law, the City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On August 17, 2020, Johnathan Brown requested six categories of records related to the involvement of the Anti-Defamation League “in three Countering Violent Extremism (CVE) programs developed and implemented in Boston and Massachusetts, also known as ‘Youth and Police Initiative Plus (YPIP)’, ‘New Freedoms Intervention’, ‘Empower Peace’ and any similar programs.” 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 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

Seah Levy SPR20/1531 Page 2 September 4, 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). Petition to Charge for Time Spent Segregating and Redacting In its petition dated August 31, 2020, the City requests that it “be permitted to charge the actual time involved to segregate, review and redact the records requested by Jonathan Brown (‘Requester’) on 8/17/2020.” The City states that the “Police Department’s Information Technology Department has estimated that 600 documents may be produced from this request, and between 2400-3000 email records” and notes that “[m]any of the email records may have attachments which will also need to be reviewed.” The City estimates that it will require 20

Seah Levy SPR20/1531 Page 3 September 4, 2020 hours to review and redact the records, for a total cost of $500 for review and redaction. The City estimates it will require an additional 20 hours for the search and copying of responsive records. The City states that “the results of the IT search for electronic records and emails is anticipated to be voluminous, and will require careful review, as it will necessarily involve police department records, which often contain materials and data exempt from the public records law.” The City further explains that it “has found the need to redact or withhold a variety of types of emails in similar search requests, including” attorney-client communcications, and information exempt from disclosure pursuant to Exemptions (a), (c), (f) (d), and (o) of the Public Records Law. In his request, Mr. Brown states that “we believe this request is in the public interest” and explains that “[t]he requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.” Given the public interest served by limiting the cost of public access to the requested records, permission to charge for time spent segregating or redacting responsive records cannot be granted. However, please note that this does not preclude the City from charging for time spent performing segregation and redaction that is required by law. 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).

Seah Levy SPR20/1531 Page 4 September 4, 2020 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 In its petition, the City writes: “due to the time needed to review, redact and segregate records for this request in addition to coordinating with the various departments which may provide additional record…the City…requests that [it] be provided 30 business days in addition to the statutory 10 business days to respond, commencing upon receipt of payment for this request.” I find that in light of the broad scope of the request, the need to collect and redact the request, and the capacity of the City to produce the request without the extension, 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. Please note the time may begin to run once the City receives payment. G. L. c. 66, § 10(c). Conclusion For the reasons set forth above, the City’s petition for a waiver of statutory limits to fees is denied, and the City’s petition for an extension of time is granted. The records must be provided consistent with the Public Records Law and its Access Regulations. The requestor may appeal the substantive nature of the City’s response within ninety days. See 950 C.M.R. 32.08(1). Additionally, the requestor may seek judicial review of this decision by commencing a civil action in the superior court under G. L. c. 66, § 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Johnathan Brown