Jivan S. Wheeler v. Cambridge, City of - Office of the City Solicitor (SPR 20201608)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 15, 2020 SPR20/1608 Seah Levy Public Records Access Officer Law Department Cambridge City Hall 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received your petition on behalf of the City of Cambridge (City) seeking an extension of time to furnish copies of a requested record. G. L. c. 66, § 10(c). The City is also seeking to charge for segregation and redaction of the records. 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), (d)(iv)(2). On August 20, 2020, Jivan Sobrinho-Wheeler requested two categories of records: “ • Any documents or correspondence relating to mutual aid agreements between the Harvard University Police Department or the MIT Police and the Cambridge Police Department • Any documents or correspondence related to the Harvard University Police Department or MIT Police assisting the Cambridge Police Department in responding to protests or other matters in the past 10 years.” Subsequent to the opening of this petition, Mr. Sobrinho-Wheeler sent a response to this office on September 14 2020 that addresses the City’s petition. 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; 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 SPR20/1608 Page 2 September 15, 2020 (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). 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 September 4th petition, the City states “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 records, pursuant to 950 CMR 32.06 (4)(e) the undersigned City of Cambridge Public Records Access Officer requests that the City be provided 30 business days in addition to the statutory 10 business days to respond, commencing upon receipt of payment for this request.” The City states “in addition to the 17 hours estimated by the various departments involved in the search for these records…[c]urrently, the City estimates this will take ten hours to review, redact, and segregate the email records requested.” The Department explains “[t]his request will require multiple email searches in order to locate all existing documents and correspondence. The requester has not specified specific accounts or mailboxes to be searched. The City will either need to coordinate with the Cambridge Police Department to determine the names of individuals who may have been involved in these topics, or it will be necessary to undertake a search of all existing accounts on the CPD servers. The same is true of the City of Cambridge IT Department, which may also need to conduct the above searches for any relevant or responsive materials. Additionally, as no search terms have been specified, it will be necessary to determine keywords for these searches, and if necessary, re-run any searches with new keywords if it becomes clear a topic was missed.” The Department further explains “[w]hile the time period for some of these searches has not been specified, one of them spans a period of ten years. These searches are likely to produce an extremely large number of emails, which will need to be reviewed by the Public Records

Seah Levy SPR20/1608 Page 3 September 15, 2020 Access Officer in order to determine whether they are responsive to the request, and whether or not they contain materials which are exempt from disclosure pursuant to the public records law.” I find that in light of the broad nature of the request; and the need to search for, segregate, and redact the requested records, the Department has established good cause to permit an extension of time of 15 business days. G. L. c. 66, § 10(c)(i)-(v); -se-e- a-ls-o G. L. c. 66, § 10(b)(vi) (a records access officer may identify a reasonable timeframe in which it shall produce the public records sought; provided, that for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request). Petitions for ability to assess fees 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. 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). The Supervisor may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request, the fee is necessary such that the request could not have been prudently completed without the redaction, segregation or fee in excess of $25 per hour, and the amount of the fee is reasonable and the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § 10(d)(iv). 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. Id. In its petition, the City “requests that the City be permitted to charge the actual time involved to segregate, review and redact the records requested…” The City states that it “…estimates this will take ten hours to review, redact, and segregate the email records requested, two of which will be waived pursuant to 950 CMR 32.07(m)(1), at a rate of $25.00 per hour for the lowest paid employee capable of reviewing and if necessary, redacting exempt information.” The Department indicates the records must be reviewed to determine “they contain materials which are exempt from disclosure” and cites attorney-client privilege, Exemption (a), (c), (d) (f), (j), (n), and (o).

Seah Levy SPR20/1608 Page 4 September 15, 2020 The City states Exemption (a) redactions could include, along with attorney-client privilege, “domestic violence and sexual assault reports – G. L. c. 41, §97D; license and registry information linking individuals to the ownership of a vehicle – Driver’s Privacy Protection Act of 1994 18. U.S. Code §2721…” The City explains in regard to its attorney-client privilege claim that “departments frequently seek advice when developing policy, or when anticipating litigation, from the City Solicitor’s office…” The City further explains in support of its Exemption (a) claim that “[m]any of the responsive documents are likely to be police reports.” For Exemption (c), the Department explains redactions may include “[p]ersonnel records are often mentioned in connection with employee assignments and reports, and may be present in the records regarding policing protests and mutual aid…” The Department further explains for Exemption (c) that “[m]edical information is mentioned by employees from time to time if the need arises to be absent; medical information of employee family members is mentioned from time to time arising from the need for an employee to be absent from a project; medical information is occasionally sent in by a resident of the City, or a family, friend, or attorney of a resident, if they are requesting assistance for that individual.” For Exemption (f), the City explains “[b]ecause the email accounts to be searched are those of the Cambridge Police Department, it is possible that information regarding ongoing police investigations may be retrieved in the process.” In further support of its Exemption (a), (c), (f), and (j) claims, the City explains “[t]he request asks for any documents or correspondence related to the Harvard University Police Department assisting the Cambridge Police Department in responding to protests or ‘other matters’ in the last ten years.” For Exemption (j), the City indicates the responsive records may include “information regarding ownership and the physical location of firearms…” Under Exemption (d), the City explains redactions may include “[i]nter-agency and intra- agency memoranda and letters regarding policy positions which are still being actively developed by City of Cambridge employees.” For Exemption (n), the City explains “[g]iven that these are police records and emails, there may be information that is exemption pursuant to Exemption (n) of the public records law.” And lastly, the City cites Exemption (o) for potential redaction of “[h]ome phone or personal cell phone numbers are occasionally mentioned by City employees who are working from home or traveling to a meeting or work location.” Given the public interest served by limiting the cost of public access to the requested records, the City has not met its burden to charge for segregation and redaction that is not required by law. G. L. c. 66, § 10(d)(iv). This office encourages Mr. Sobrinho-Wheeler and the City 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 municipality to produce records sought more efficiently and affordably).

Seah Levy SPR20/1608 Page 5 September 15, 2020 Conclusion Accordingly, I find the City has established good cause for a time extension of 15 business days as described above. Further, I find the City has not met its burden to explain how the response could not be prudently completed without charging a fee for redaction or segregation. Please note, however, this does not preclude the City from charging for segregation and redaction that is required by law. Please note, Mr. Jivan Sobrinho-Wheeler 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: Jivan Sobrinho-Wheeler