Brad Petrishen v. Worcester, City of - Law Department (SPR 20202016)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 27, 2020 SPR20/2016 Janice E. Thompson, Esq. Assistant City Solicitor City of Worcester Law Department 455 Main Street, Room. 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 produce records. G. L. c. 66, § 10(c). As required by law, it is my understanding that the City furnished a copy of this petition to the requestor. Id. In a letter dated September 18, 2020, Brad Petrishen requested six categories of records concerning the City. On October 2, 2020, the City provided Mr. Petrishen a response. Petition 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. SPR20/2016 Page 2 October 27, 2020 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). Current Petition In a letter to this Office dated October 19, 2020, the City requests “that the Supervisor grant the City of Worcester an extension of 30 business days to produce records responsive to Mr. Petrishen’s request for public records.” The City notes, “[a] majority of the requested records are not maintained electronically; in order to fulfill the request it is necessary to locate each paper file.” The City adds, “[w]ith respect to items 1 and 2 of the first request, responsive documents relating to this matter have been archived. A Human Resources Department employee has been assigned to locate and retrieve the files from the archives. Once located, these paper files will need to be scanned by administrative staff to permit review and preparation for disclosure.” The City adds, “[w]ith respect to items 3 and 4 of the first request, the City has located approximately 9 files which may be responsive. With respect to items 1 and 2 of the second request, the City has located approximately 138 potentially responsive records. These files have been scanned by administrative staff to permit review and disclosure.” The City expressed “[t]hese files contain information exempt from disclosure and subject to redaction...Particularly with respect to complainants and witnesses, names and personally identifying information is woven throughout the narratives repeatedly in various forms, and the work necessary to protect the identities of these individuals is time-consuming and burdensome. On average it takes one hour per file to complete review and redaction of the records.” The City posits it is “acting in good faith to complete the tasks associated with responding to this request. However it is beyond the capabilities and resources of the City to assign an employee to work full-time to respond to the requests of a single public records requester. This would place an undue burden on the City and divert resources away from other essential municipal functions, including but not limited to the fulfillment of other public records requests. Accordingly, it is necessary for the City to seek an extension of time to fulfill Mr. Petrishen’s requests. Further, please note that although the public records law permits a ‘reasonable fee for the publication of a public record except those records that are freely available for public inspection’ M.G.L. c. 66 § 10(d), the City declined to petition the Supervisor of Records to assess fees for the search, review and segregation of records responsive to these requests, and the City waived the fees associated with statutory redactions.”

Janice E. Thompson, Esq. SPR20/2016 Page 3 October 27, 2020 Conclusion Given that the scope of several portions of the request spans 20 years of records, in addition to the resources required to locate and segregate the records, I find the City has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the City an extension of 30 business days to furnish copies of records responsive to Mr. Petrishen’s request. See G. L. c. 66, § 10(c). To the extent possible, the City must provide responsive records on a rolling basis. When preparing a fee estimate for the provision of the requested records the City is advised to provide a detailed explanation to the requestor detailing why the amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The City must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. The City must provide a response to Mr. Petrishen within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Petrishen may appeal the City’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note the requestor 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), l0A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Brad Petrishen