Elizabeth Koh v. Cambridge, City of - Office of the City Solicitor (SPR 20220411)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 24, 2022 SPR22/0411 Seah Levy Public Records Access Officer City of Cambridge, Law Department City Hall, 795 Massachusetts Avenue Cambridge, MA 02139 Dear Seah Levy: On February 18, 2022, this office received your petition on behalf of the City of Cambridge (City) requesting an extension of time to produce records, permission to charge for time spent segregating or redacting responsive records, as well as to charge in excess of the statutory fees. G. L. c. 66, § 10(c); G. L. c. 66, § 10 (d)(iv). As required by law, it is my understanding that the City furnished a copy of this petition to the requestor, Elizabeth Koh of the Boston Globe. Id. On February 4, 2022, Ms. Koh requested: • any and all contracts or invoices with outside vendors or private parties for legal, investigative or human resources work from Jan. 1, 2007 through Jan. 30, 2022 pertaining to inquiries related to allegations of abuse, bullying, harassment, discrimination or other misbehavior or misconduct by students, staff members, and/or coaches • any and all related records to such services provided from Jan. 1, 2007 through Jan. 30, 2022. This includes, but is not limited to: -any prepared reports, investigations or reviews -any preparatory materials or files, including internal and external communications or electronic correspondence in the possession of the district, school board or school officials service orders, memoranda of agreement/understanding, or other records related to retainment, cost, and scope of work. -any emails, statements, news releases, or other communications to families, educators, the media, or the public about the outside vendors’ ‘work.’ 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

Seah Levy SPR22/0399 Page 2 February 24, 2022 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). 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). Extension of Time to Produce Responsive Records In its February 18th petition, the City requests that it “…be provided 30 business days in addition to the statutory 10 business days to respond, commencing upon receipt of payment for this request.” The City notes, “[t]he time frame for this request spans approximately 15 years. Multiple departments will be involved, and retrieval and review of offsite hard-copy records will be required by both the School Department and Law Department. Both the City Hall and School Department IT Departments will be required to determine the correct mailboxes and accounts to be searched, as well as determine search terms to use for said searches, or combinations of keywords that might lead to responsive records. The results of such searches are often voluminous, with a large number of unresponsive emails present, and therefore require careful review.”

Seah Levy SPR22/0399 Page 3 February 24, 2022 I find in light of the volume of records, the need to collect and segregate the request, as well as the capacity of the City to produce the request without an extension, the City has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). The City is granted an extension of 30 business days. Petitions to Assess Fees 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 (Supervisor) 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). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates 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

Seah Levy SPR22/0399 Page 4 February 24, 2022 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 Petition In its February 18th petition, the City “…anticipates the need to redact and withhold information from both the digital and hard copy searches that take place. Many of these redactions and withholdings will be required by law, and due to the sensitive nature of these records, which will include information regarding both student records and sexual assault, review of any final response will be required by both the School Department Legal Counsel and the City of Cambridge City Solicitor.” The City has found the need to redact or withhold a variety of records in previous similar responses, including, but not limited to, the following: 1. Confidential Student Records, Exemption (a) pursuant to G.L. c. 71, § 34D, 34E. By the nature of the request, this response will include such records; 2. Sexual Assault and Harassment Records, Exemption (a) pursuant to G.L. c. 41, § 97D. By the nature of the request, this response will include such records; 3. Tax ID Numbers, checking account numbers, and routing numbers, often included in invoices or other financial records. Exemption (a) pursuant to G.L. c. 62C, § 21. By the nature of the request, this response will most likely include such records; 4. Confidential Medical Information: this information may be that of students, or of staff, of the Cambridge Public Schools. By the nature of the request, this response is likely to include such records. Exemption (c); 5. Personnel Records. By the nature of this request, this response will necessarily require review of such records. Exemption (c); 6. Attorney-Client Privileged Communications. The requester has asked for prepared reports, investigation materials, reviews, files, and internal and external communications with third parties on matters involving legal investigations. There will necessarily be Attorney-Client Communications which will need to be segregated and/or redacted, and a

Seah Levy SPR22/0399 Page 5 February 24, 2022 privilege log which must be created; 7. Inter-agency and intra-agency memoranda and letters regarding policy positions which are still being actively developed by City of Cambridge employees, Exemption (d). If there are any current or ongoing investigations, it may be necessary to review and segregate these records. 8. Home phone and personal cell phone numbers are regularly mentioned by City employees who are currently often working from home due to pandemic conditions. These numbers will need to be located and redacted. Exemption (o). The City contends that “[t]he requested fee is necessary because this request cannot be ‘prudently completed without the [review and redaction],’ and given that the fee is not intended to ‘limit, deter or prevent access’ to the requested records, [the City] respectfully request the approval of this petition.” Conclusion Given the public interest served by limiting the cost of public access to the requested records, I am unable to grant permission to charge for time spent segregating or redacting responsive records or to charge in excess of $25 an hour. Please note, this does not preclude the City from charging for segregation and redaction that is required by law at $25.00 per hour. With respect to time, I find the City has established good cause for a time extension of 30 business days as described above. 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 provide a response to Ms. Koh within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Koh may appeal the City’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Elizabeth Koh