Jeanne Holmes-Kireilis v. Brockton, City of - Law Department (SPR 20201923)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 22, 2020 SPR20/1923 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 City of Brockton (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 28, 2020, Ms. Holmes-Kireilis requested “an opportunity to inspect and/or obtain a copy of any and all records, including communications, either electronic or hard copy, account data, and any other records, pertaining to invoices, payments, rejection of payments and any other records from any funeral home(s) or other vendors on behalf of funeral home(s) in FY2017, FY2018, FY2019, FY2020 and FY2021 by and between the city of Brockton, including but not limited to all departments and officials.” The City responded on September 15, 2020, by providing responsive records and including a fee estimate. Unsatisfied with the City’s response, Ms. Holmes-Kireilis petitioned this office, and SPR20/1923 was opened as a result. 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. 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. SPR20/1923 Page 2 October 22, 2020 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). Current Appeal In her appeal, Ms. Holmes-Kireilis states “I am appealing this public records request and the response by the city. To date, the city has not provided me with all the requested records and they are unlawfully charging for the requested records.” G. L. c. 66, § 10(e) In her appeal petition, Ms. Holmes-Kireilis asserts that the City’s “response was past the 10 business days they are not permitted to assess any fee.” G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Ms. Holmes-Kireilis submitted a public records request on August 28, 2020, and the City provided a fee estimate on September 15, 2020 I find it is unclear whether the City complied with G. L. c. 66, § 10(e). Specifically, the City must demonstrate

Megan D. Bridges, Esq. SPR20/1923 Page 3 October 22, 2020 whether it provided a response to Ms. Holmes-Kireilis’s request under G. L. c. 66, § 10(b) within 10 business days following receipt of the request. Reasonableness of fee estimate In the event that the City can demonstrate that it complied with G. L. c. 66, § 10(e), it is necessary to analyze the reasonableness of the fee estimate. In its September 15th response, the City indicates “[i]n order to for search, review and segregate additional responsive records, payment of a fee is necessary.” The City explains “[a]dditional time will be necessary to: • Coordinate with IT to continue to search for all relevant emails (approximately 2 hours at $25.00 per hour); and • Continue to research and compile additional responsive records from the Cemetery Department (16 hours x $24.36 per hour).” The City provides an “estimate for search, review and segregation for your public record request is $439.76 (2 hours x $25.00 per hour+ 16 hours x $24.36 per hour).” However, it is unclear why the City requires the amount of time indicated to complete these tasks. The City must provide additional information explaining why the estimated amount of time is required and what these tasks, including what “research and compile additional responsive records” entails. Also the City’s estimate does not make clear how many hours are being allocated to each of the specified tasks for “search, review and segregation.” The City must clarify this estimate. Further, the City indicates that it is assessing a fee of $25 an hour to produce the responsive records. The City is reminded that under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). I am not aware that the City has submitted a petition under G. L. c. 66, § 10(d)(iv). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. See 950 C.M.R. 32.06(4)(g). As such, I find the City must provide information about whether the responsive records contain information that is required by law to be segregated, as well as the applicable statutes, if any. 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

Megan D. Bridges, Esq. SPR20/1923 Page 4 October 22, 2020 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