Jeanne L. Holmes-Kireilis v. Brockton, City of - Law Department (SPR 20210319)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 19, 2021 SPR21/0319 Allison M. Cogliano, Esq. 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 Attorney 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, Attorney 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 the subject of a previous petition and subsequent appeals. See SPR20/1292 Determination of the Supervisor of Records (August 10, 2020); SPR20/1922 Determination of the Supervisor of Records (October 22, 2020) and SPR20/2282 Determination of the Supervisor of Records (December 8, 2020). In my December 8th determination, I found in light of both parties’ willingness to engage in communication to facilitate providing records more efficiently and affordably, it was unnecessary to opine on the City’s November 20th response. Also, I advised that if after subsequent communications outstanding issues remained, Attorney Holmes-Kireilis could file a further appeal. Attorney Holmes-Kireilis petitioned this office and this appeal, SPR21/0319, 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. SPR21/0319 Page 2 February 19, 2021 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 – Municipalities 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 20, 2021 response, 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

Allison M. Cogliano, Esq. SPR21/0319 Page 3 February 19, 2021 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 … 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.” In her appeal, Attorney Holmes-Kireilis states, “[d]espite the city’s claim to work on this, I have not heard from them to date. Therefore, I am appealing the city’s response, lack of response and excessive and unreasonable fees.” In a response to this office on February 17, 2021, the City indicates “… I invited Attorney Kireilis to modify her request so that the fee assessment would decrease for her. However, she never reached out to me to modify her request.”

Allison M. Cogliano, Esq. SPR21/0319 Page 4 February 19, 2021 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 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 estimates 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. This office continues to encourage Attorney Holmes-Kireilis and the City 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 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). Conclusion Accordingly, the City is ordered to provide Attorney Holmes-Kireilis with a response, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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, Esq.