Paul Pines v. Brockton, City of - Law Department (SPR 20220754)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 8, 2022 SPR22/0754 Allison M. Cogliano, Esq. Assistant City Solicitor City of Brockton 45 School Street 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 18, 2022, Paul Pines requested: • All Marijuana Host Community Agreements executed in the last year • All Marijuana Host Community Agreement requests for the last two years. 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. 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. SPR22/0754 Page 2 April 8, 2022 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 petition dated April 1, 2022, the City states, “[t]here are a total of 24 email addresses that I asked our IT department to search through. IT used the key word ‘host community agreement’ to conduct the search and the results were a total of 2,622 emails.” The City estimates that an additional one (1) minute, give or take, per email is required to segregate and redact each of the 2,622 emails. (2,622 minutes or 43.7 hours).” The City contends that “[t]his task will profoundly burden the City’s IT and Law Departments and will hinder each department’s ability to timely address its other day-to-day responsibilities. 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).” I find in light of the volume of records, and 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. 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).

Allison M. Cogliano, Esq. SPR22/0754 Page 3 April 8, 2022 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. 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 April 1st petition, the City states it “…must charge a fee as the above-mentioned emails may contain sensitive information which is exempt pursuant to Massachusetts state law. Such exemptions require segregation and redaction and may include the following: a. G. L. c. 4, § 7(26)(c), G. L. c. 4, § 7(26)(b), G. L. c. 4, § 7(26)(d), G. L. c. 268A, § 22, common law attorney client privilege, and the work product privilege; and

Allison M. Cogliano, Esq. SPR22/0754 Page 4 April 8, 2022 b. 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.” The City notes, “[t]he 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 $1,042.50 ($25.00 x [43.7 hours – first 2 hours]).” Conclusion Given the public interest served by limiting the cost of public access to the requested records, permission to charge for time spent segregating or redacting responsive records cannot be granted. However, this does not preclude the City from charging for segregation and redaction that is required by law. 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: Paul Pines