Young Kim v. Cambridge, City of - Office of the City Solicitor (SPR 20221412)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 27, 2022 SPR22/1412 Seah Levy Records Access Officer City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Seah Levy: On June 17, 2022, this office received your petition on behalf of the City of Cambridge (City) seeking an extension of time to produce records and a waiver of statutory limits on fees that may be assessed in responding to a public records request. G. L. c. 66, § 10(d)(iv) ; G. L. c. 66, § 10(c). As required by law, it is my understanding that the City furnished a copy of this petition to the requestor. Id. On June 3, 2022, Young Kim requested “[a]greements for Engineering Design Services, Files 5918, 7113, 8412, 10141. 1) Designer Selection Committee’s recommendation of designers to the City Manager 2) City Manager’s report to the City Council 3) Designer Fee for each selected designer. 4) If available, the total actual fee at the end of each Agreement.” Petitions 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; 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 SPR22/1412 Page 2 June 27, 2022 (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). 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). In its June 17th petition, the City states the following: Since the start of the calendar year, the Requester has made nineteen (19) public records requests, inclusive of the current request, two of which were withdrawn. These requests represent a significant amount of time cumulatively and are all related to the same basic topic of the City’s Cycling Safety Ordinance, as is the current request. No fees were charged on these other requests… Additionally, the City anticipates that given that such a large amount of time dedicated will be required for this single request, additional days will be needed to fulfill this request. The City hereby identifies a reasonable timeframe to respond to this request of 25 business days from the date of receipt of requester’s payment, pursuant to G.L. c. 66 § 10(b)(vi). I find in light of the capacity of the City to produce the request without an extension and the efforts already undertaken by the City to provide responsive records, 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 25 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). 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

Seah Levy SPR22/1412 Page 3 June 27, 2022 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 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 June 17th petition, the City requests “…a waiver of the statutory limits on fees that may be assessed in responding to a request made by Young Kim (Requester) on 6/3/2022. Specifically, the City asks that it be allowed to charge for time worked on these requests by the Public Records Access Officer (Seah Levy) after the initial two hours of waived fees has been exhausted.” The City states, “[w]ith regards to items 1, 3 and 4 of this request, there is no database or spreadsheet which contains this information. It will be necessary for the Purchasing Department to locate over 500 individual contracts, representing thousands of pages, in order to provide these

Seah Levy SPR22/1412 Page 4 June 27, 2022 records for the Requester. Once they are located, the Public Records Access Officer will review and make any redactions that are required by Massachusetts statutory law. Assuming that each contract may be reviewed (on average) within approximately 2.4 minutes each, or at a rate of 25 per hour, the City anticipates that this request will take 20 hours of time. The City has allotted one (1) hour of time for the Purchasing Department to locate and deliver these contracts to the Law Department, resulting in an estimate of 19 hours of work after the first two hours of waived time.” The City contends that “[t]his petition meets the statutory standards stated in G.L.c.66, §10(d)(iv) to be used by the Supervisor in ruling upon petitions such as this, in that the requested fee ‘is necessary such that the request could not have been prudently completed without the redaction.,’ The fee requested here is reasonable given the volume and contents of the material that is responsive to the request.” Conclusion Where the City does not seek to assess a fee in excess of $25.00 per hour, it is unnecessary to opine on the City’s petition for a waiver of the statutory limits on fees that may be assessed in responding to a public records request. Further, this office encourages Young Kim and the City to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). Please note, Young Kim 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),10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Young Kim