Jeanne Holmes-Kireilis v. Brockton, City of - Law Department (SPR 20201922)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 22, 2020 SPR20/1922 Megan D. Bridges Assistant City Solicitor Law Department City of Brockton 45 School Street - City Hall Brockton, MA 02301 Dear Attorney Bridges: I have received the petition of Jeanne Holmes-Kireilis appealing the response of the Division of Professional Licensure (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 18, 2020 and July 19, 2020, Ms. Holmes-Kireilis requested four categories of records; three categories pertaining to the FY21 budget from July 1, 2019 to present. One category of requested records for the same time period pertains to “any and all records, including documents, emails…provided on behalf of the City of Brockton…to either send and or receive communication, in conducting any city related business…” for named custodians, but including “[a]ll other city employees, vendors or agents…” Previous Petition The requested records were subject to a previous petition. See SPR20/1292 Determination of the Supervisor of Records (August 10, 2020). In my August 10th determination, I found the City had established good cause for a time extension of 30 business days. Further, I found the City had met its burden to explain how the response could not be prudently completed without redaction or segregation. The parties were also encouraged 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 agency to produce records sought more efficiently and affordably). I understand a staff attorney of the Public Records Division contacted the parties regarding this matter. This office continues to encourage this communication. 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. SPR20/1922 Page 2 October 22, 2020 The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Fee Estimate 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).

Megan D. Bridges, Esq. SPR20/1922 Page 3 October 22, 2020 The City’s Fee Estimate In its July 31st fee estimate, the City indicates its “…estimate for search, review, and segregation for the public record request, is $13,250 (530 hours x $25.00 per hour).” The City also notes “[s]ince the emails need to first be printed on paper…the City estimates an additional cost of $1,382.00 (27,642 x .05 per page) to produce the records.” The total estimate provided by the City to respond to the request is $14,632.00. As described above, the City cites statutes under Exemption (a); attorney-client privilege and work product privilege; as well Exemptions (b), (c), (d), (f), (n), and (o) for potential redaction of the requested records. The City provides an estimate of one minute to review each email for redaction, which amounts to approximately 461 hours. The City also indicates it will take 8 hours to “[c]oordinate with IT for the City and School Department and continue to search for all the relevant emails”; 37 hours to “[m]eet with all departments in increments of one hour each, to determine where and how they maintain the requested documents and information”; and 24 hours to “[r]etrieve, copy or scan all relevant documents from all departments.” The City explains due to the scope of the request and the “financial impacts of the Covid19 Pandemic…[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 provides a list of specific emails that may require redaction, along with exemptions that may be applicable to the records. The City explains the provided hours is “based on an estimated review time of one minute per email and an hour to meet with the departments that have potentially responsive records.” The City indicates given the applicable exemptions “the person charged with this task must be able to determine which information may be exempt by statute. For these reasons, this task must be performed by an attorney. Further, since the attorney reviewing the emails will not be able to redact the emails in their current electronic form, they will first be printed in hard copy…the City must assess a fee for the time spent compiling, segregating, and redacting the emails.” The City notes “the fee estimate provided to the Requestor likely will not cover the actual cost incurred by the City to comply with this request, as 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. Additionally, the City has already undertaken hours of work to comply with this request, which it is not request a fee for performing.” The City’s fee estimate has not explained with specificity why the indicated amount of time is necessary for producing the requested records. Specifically, it is unclear why it will take the City it will take 8 hours to “[c]oordinate with IT for the City and School Department and continue to search for all the relevant emails”; 37 hours to “[m]eet with all departments in increments of one hour each, to determine where and how they maintain the requested documents and information”; and 24 hours to “[r]etrieve, copy or scan all relevant documents

Megan D. Bridges, Esq. SPR20/1922 Page 4 October 22, 2020 from all departments.” Further, the City estimate it will take 461 hours to review each email; however it is unclear how much time is estimated to be spent on segregation, as well as redaction. The City must clarify these matters. Please be advised the City received approval to charge for segregation and redaction, to the extent the responsive records contain the exempt information. See SPR20/1292 Determination of the Supervisor of Records (August 10, 2020). Order Accordingly, the City is ordered to provide a response to Ms. Holmes-Kireilis in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Jeanne Holmes-Kireilis