Tanekwah Hinds v. Worcester, City of - Law Department (SPR 20201594)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 14, 2020 SPR20/1594 Janice E. Thompson Assistant City Solicitor City of Worcester Law Department 455 Main Street, Rm. 301 Worcester, MA 01608 Dear Attorney Thompson: I have received your petition on behalf of the City of Worcester (City) seeking an extension of time to furnish copies of requested records. G. L. c. 66, § 10(c). Specifically, on August 7, 2020, Tanekwah Hinds of American Civil Liberties Union requested 26 categories of records pertaining to discussions surrounding polling locations, with some categories dated from 2016. 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). 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

Janice E. Thompson, Esq. SPR20/1594 Page 2 September 11, 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). Current petition In its petition dated September 4, 2020, the City requests “the Supervisor grant the City of Worcester an extension of 30 business days to produce records responsive to Ms. Hinds’ request for public records.” The City indicates it provided “the requester with a written response within 10 business days…[i]n its written response, the City stated that it would require an additional 15 business days…individually locate and identify records responsive to the request, and that additional time may be required to respond to the request in full due to the broad nature of the request. In its initial response, the City provided links to pages on the City’s website where a majority of the responsive records are available.” The City explains “[i]dentification of any additional responsive records will require that the City Clerk’s Office manually search its records dating back to 2016. Based on the outcome of the initial manual search, further work may then be required to locate and identify additional responsive records. The City estimates that in total it will require an average of two hours per category (both enumerated and additional) to complete the work associated with the response.” The City further explains “…it is beyond the capabilities and resources of the City to assign an employee to work full-time on a single public records request. This would place an undue burden on the City and divert resources away from other essential municipal functions. Notably, the City Clerk’s Office, which is completing the work associated with this request, is responsible for the work required to conduct the recent primary election and upcoming general election, including but not limited to the implementation and execution of early voting and mail- in voting. Accordingly, it is necessary for the City to seek an extension of time to fulfill Ms. Hinds’ request.” An attorney for the Public Records Division reached out to the City for clarification regarding the basis for the 30 day extension. The City provided a supplemental response on September 14, 2020, explaining “[t]he City cannot with certainty state that any category has been completely fulfilled until a manual search is completed of other records (not already provided) related to the Election Commission dating back to 2016…due to the manner in which the requester’s overly broad request was phrased, the City is required to confirm whether any additional records exist. This requires a manual search of 4 years’ worth of individual folders for any additional responsive documents that may exist, each document in every file must be reviewed and cross checked against each category set forth in the request. As noted this requires a manual search, it cannot be completed as a tech services search. The time period encompasses 38 meetings of the Election Commission. In the reasonable estimation of the employees familiar with the tasks involved, the time set forth in the City’s petition is required in order to complete this work, and this may be a conservative estimate. Additional consideration must be given to the

Janice E. Thompson, Esq. SPR20/1594 Page 3 September 11, 2020 fact that the magnitude or difficulty of responding to this request unduly burdens the other responsibilities of the responding department, which is currently tasked with the responsibilities associated with the recent and upcoming elections.” In its September 4th response, the City also notes it “made efforts to discuss the request and need for additional time with the requester in order to provide the records in the most expeditious and efficient manner possible; although in her request the requester acknowledged the ‘substantial’ nature of the request and offered to discuss an extended timeframe for production, the requester did not respond to the City’s efforts to discuss the matter.” The City further indicates “[r]equiring the City to expedite production of all additional records beyond the requested timeframe of 30 business days as set forth in the City’s petition would be contrary to the processes for access to public records set forth in the statute and regulations, and would place the City in an impossible position.” I find that in light of the broad nature of the request, the need to search for the requested records, as well as the capacity of the City to produce the request without an extension, the City has established good cause to permit an extension of time of 20 business days. G. L. c. 66 § 10(c)(i)-(iv). Conclusion For the reasons discussed above, the City is granted an extension of 20 business days to produce responsive records. 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: Tanekwah Hinds