Jeanne L. Holmes-Kireilis v. Brockton, City of - Law Department (SPR 20202282)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 8, 2020 SPR20/2282 Allison M. Cogliano Assistant City Solicitor Law Department City of Brockton 45 School Street - City Hall Brockton, MA 02301 Dear Attorney Cogliano: 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 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 Determinations The requested records were subject of a previous petition. See SPR20/1292 Determination of the Supervisor of Records (August 10, 2020); SPR20/1922 Determination of the Supervisor of Records (October 22, 2020). In my October 22nd determination, I found the City’s fee estimate had not explained with specificity why the indicated amount of time is necessary for producing the requested records. The City was ordered to provide a response to Ms. Holmes-Kireilis in a manner consistent with the order, the Public Records Law and its Regulations. The City provided said response, including responsive records, on November 20, 2020. Unsatisfied with the City’s response, Ms. Holmes-Kireilis petitioned this office, and SPR20/2282 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 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

Allison M. Cogliano, Esq. SPR20/2282 Page 2 December 8, 2020 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). The City’s November 20th response In its November 20th response, the City indicates it “wishes to work with [Ms. Holmes- Kirelis] to negotiate appropriate modifications and boundaries.” The City further indicates to the requestor it is “attaching those documents which it was able to gather from varying departments related to your request free of charge. There are no further records available that will not require

Allison M. Cogliano, Esq. SPR20/2282 Page 3 December 8, 2020 the additional time and expense as explained in the fee estimate the City previously provided and as further clarified herein. Also, please be aware that documents related to the FY21 budget, including the amended budget, final budget and outstanding debt reports, are readily accessible online at Brockton.ma.us/citydepartment/finance. Each of these documents are in a machine readable and downloadable format.” The City provides “[a]s stated in its response dated July 31, 2020, it will take an estimated 8 hours of time for the IT department for the City and Brockton Pubic Schools to search for all emails which may be relevant to and fall under the scope of your records request. IT did their initial search which resulted in over 27,000 emails as referenced in Attorney Bridges' letter to you dated July 31, 2020. This list of email addresses is not a complete list according to your request. This initial search took IT two days to complete using only three keywords. Therefore, the City estimates an additional 8 hours to search the remainder of the city employees' emails using the search words already shared with you as well as additional search words in order to ensure all requested information is provided to you in response to your request.” The City states it “estimates that 37 hours are required to meet with each of the 37 named departments and employees within the City of Brockton. Your request seeks, among other things, phone records from all city employees. The City does not maintain detailed phone records and, in order to adequately respond to this request, it is necessary for the City to meet with each department individually and discuss where and how their records are kept as well as what is expected to be included in these records. This process requires an attorney to speak with each department and explain exactly what they need to look for. This estimate also includes time which may be required for follow up questions from each department head. While the time to meet with department heads and/or specific employees will vary depending on each individual's understanding of the request and the necessity to assist in locating or determining where responsive documents may be maintained, one hour each has been deemed a good faith estimate based on meetings and follow up conversations already had with specific departments in coordinating this response. It is important to note that, although we have estimated these meetings will take approximately one hour each, this time could very well be less and the City will adjust the fee accordingly.” The City further states it “estimates a total of 461 hours for an attorney to segregate and redact each requested email. As detailed in its previous response, the City has run a search of emails with the keyword ‘budget’ in order to ensure the search is inclusive of all potentially relevant emails. As such, the initial search resulted in a total of 27,642 emails. After considering the time it will take to segregate each email and then the time it will take to redact if necessary, one minute per email is the City's good faith estimate of the average time it will take across the board. Therefore, this adds up to be approximately 461 hours of time.” The City notes it “may be able to reduce this fee estimate considerably in the event that you are able to narrow the scope of your request. We appreciate your willingness to remove emails from your records request as indicated in your email to Attorney Bridges dated October 22, 2020. However, we also understand you plan to submit a new request for such emails.

Allison M. Cogliano, Esq. SPR20/2282 Page 4 December 8, 2020 Please be advised that a fee will still be assessed under the same model we've used to estimate the fee on your original request…[t]he language used does not provide a reasonable description of the requested records and fails to identify documents with sufficient particularity. It would not be feasible for the City to undertake the work to respond to said request without requiring an estimated fee to be paid up front. As you have already indicated that you would not be willing or able to pay the good faith estimate, I would suggest limiting the emails you are requesting by being more specific with the subject matter. Accordingly, please do not hesitate to contact this office if you would like to narrow the scope of your request prior to submitting a subsequent public records request containing the same broad and time-consuming requests for information.” 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 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. Modification of the scope of the request In her November 21, 2020 appeal, Ms. Holmes-Kirelis indicates “I emailed Attorney Bridge's on October 22, 2020 in regards to trying to work with the city and being open to discussing this request with the city; I never received a response from the city, which I feel further demonstrates that the city does not appear interested in trying to work this matter out with me.” A staff attorney spoke with the City and understands Attorney Allison Cogliano has taken over Ms. Holmes-Kirelis’s request. In the City’s November 20th response, the City indicates its willingness to work with Ms. Holmes-Kirelis in providing the records more efficiently and affordably, as well as suggesting a modification of scope by more specific subject matter. This office encourages Ms. Holmes-Kirelis and the City to continue to communicate to facilitate providing records more efficiently and affordably. Any fee estimate by the City must be in compliance with the Public Records Law and its Access Regulations. 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). In light of both parties willingness to engage in communication to facilitate providing records more efficiently and affordably, I find it unnecessary to opine on the City’s November

Allison M. Cogliano, Esq. SPR20/2282 Page 5 December 8, 2020 20th response at this time. Ms. Holmes-Kirelis may wish to narrow the scope of her request and resubmit her request to the City. If outstanding issues remain, Ms. Holmes-Kirelis may further appeal within 90 days of receipt of the response. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Jeanne Holmes-Kireilis