Michael O'Donnell v. Brockton, City of - Law Department (SPR 20221432)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 27, 2022 SPR22/1432 Allison M. Cogliano, Esq. Assistant City Solicitor Brockton Law Department 45 School Street, City Hall Brockton, MA 02301 Dear Attorney Cogliano: On June 21, 2022, this office 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, the City furnished a copy of its petition to the requestor, Michael O’Donnell. G. L. c. 66, § 10(c). On June 3, 2022, Mr. O’Donnell requested, “…all communications including but not limited to text, phone, email, and written letters, from [two] board of Health employees from April 1, 2022.” In a letter dated June 7, 2022, Mr. O’ Donnell modified the timeframe of his request to “…the month of April to start.” 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 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. SPR22/1432 Page 2 June 27, 2022 (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) 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). Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). 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 or to charge in excess of $25 an hour for the provision of public 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 the request is not for a commercial purpose. 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a

Allison M. Cogliano, Esq. SPR22/1432 Page 3 June 27, 2022 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 21st petition, the City states the following: On June 21, 2022, the City responded to the Requestor explaining that a fee would be necessary in order to comply with the public records request. A copy of the City’s response is attached hereto. As provided in that response, the records responsive to this request include reviewing 2,138 emails…for information that requires redaction pursuant to the following Massachusetts statutes: 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; 2. Hospital records, reports of certain disease, and patient information pursuant to MGL ch. 111 §§ 70, 111B, 119, 110B, 70E, and 72I; 3. Mental health records pursuant to MGL c. 123 §36; 4. Attorney-Client Privilege and work product pursuant to the Supreme Judicial Court Rules of Professional Conduct 1.6. The City contends that “…the above-listed redactions are required by Massachusetts State Law, the City is required to review said documents and emails to ensure there is no public disclosure of this information…This task will profoundly burden the 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).”

Allison M. Cogliano, Esq. SPR22/1432 Page 4 June 27, 2022 Conclusion I find that 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. With respect to time, I find that in light of the capacity of the City to produce the request without the extension, and the potential scope of redactions, the City has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the City an extension of 30 business days to furnish copies of records responsive to Mr. O’Donnell request. See G. L. c. 66, § 10(c). To the extent possible, the City must provide responsive records on a rolling basis. Please note, Mr. O’Donnell 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: Michael O’Donnell