Michelle Dubois v. Brockton, City of - Law Department (SPR 20220717)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 1, 2022 SPR22/0717 Allison M. Cogliano, Esq. Assistant City Solicitor 45 School Street, City Hall Brockton, MA 02301 Dear Attorney Cogliano: I have received your petition on behalf of the City of Brockton (City) seeking an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. 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. G. L. c. 66, § 10(d)(iv). In a letter dated March 14, 2022, State Representative Michelle Dubois requested “…emails to or from: [two identified email addresses].” 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

Allison M. Cogliano, Esq. SPR22/0717 Page 2 April 1, 2022 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) must 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 petition, dated March 28, 2022, the City states, “[a]n exact estimate of the number of emails that will result from these searches and will require redaction is not currently achievable. The requestor seeks emails contained in 108 different city email addresses and under two separate search criteria. This search will greatly burden a member of IT’s time as he would need to conduct 216 separate searches in order to produce results...Accordingly, the City is submitting this petition for an extension of time of thirty (30) days to provide the responsive records, in order to meet the deadline prescribed by 950 C.M.R. 32.06(4).” In an email dated March 31, 2022, Rep. Dubois states, “I have no problem with a 30-day extension but would not want to see that time be extended much further then 30-days.” In light of the March 31st email, I find it unnecessary to opine on the City’s time petition. I encourage the parties to communicate further to enable the City to provide records in an efficient and affordable manner. Petition 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 an agency’s petition to allow the agency 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). It is my determination that this request was not made for a commercial purpose.

Allison M. Cogliano, Esq. SPR22/0717 Page 3 April 1, 2022 The second prong of the test is whether the fee represents an actual and good faith representation by the agency 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) 2 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) Current Petition In its March 28th petition, the City states, “[p]lease accept this letter as a petition to assess fees for time spent segregating and redacting pursuant to G.L. c. 66, §10(d)(iv). This petition is for a request received from Massachusetts State Representative Michelle Dubois. This request was made via email addressed to myself, City Solicitor Megan Bridges and the IT Department on March 14, 2022.” The City notes, “…the records responsive to this request include searching through a total of 108 email addresses once for emails to or from [an identified email address] and again for emails to or from [an identified email address], a total of 216 searches to be conducted.”

Allison M. Cogliano, Esq. SPR22/0717 Page 4 April 1, 2022 The City estimates that “...the search and segregation alone will likely take approximately 2 minutes per email address. This is because, with each individual email search, IT must enter search criteria (email and date) and then wait as the full search is conducted. Each email on this list contains approximately 7GB of mail. The resulting emails will then need to be individually exported from outlook. This is why IT estimates the search alone will take just over seven hours (7.2 hours). Further, as the list of emails span across most departments in the City, and we have no way of predicting what is contained in those emails, all responsive emails must be reviewed for sensitive information that is exempt by Massachusetts statute from public record including, but not limited to, the following: 1. Privacy information exempt from public record pursuant to MGL. c. 4, § 7(26)(c), MGL.c.214, § 1B, MGL c.93H, i.e. social security numbers and date(s) of birth; and 2. Student records pursuant to G. L. c. 71, § 34D, 34E.” The City states, “[s]ince this portion of responding to the request alone will exceed two hours, a fee petition is appropriate and necessary…The hourly rate of the lowest paid city employee with the necessary skill to compile and redact the responsive records exceeds the $25.00 per hour statutory cap. Thus, when calculating the time for segregating and redacting the requested documents, the City’s fee estimate is $130 ($25.00 x [7.2 hours – first 2 hours]). This estimated fee represents an actual and good faith representation by the City of Brockton to comply with the request.” Conclusion In light of the City’s petition, I find the City has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the City may assess a charge for the segregation and redaction of such exempt material. 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: State Representative Michelle Dubois