Jim McKenna v. Brockton, City of (SPR 20221492)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 1, 2022 SPR22/1492 Allison M. Cogliano, Esq. Assistant City Solicitor City of Brockton 45 School Street, City Hall Brockton, MA 02301 Dear Attorney Cogliano: On June 28, 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, it is my understanding that the City furnished a copy of this petition to the requestor. Id. In a letter dated June 16, 2022, Attorney James P. McKenna requested: Every email correspondence sent or received by [an identified person] from September 27, 2021, through June 16, 2022; every email sent to or received by [an identified email address] from September 27, 2021, through June 16, 2022; every attachment to the aforementioned emails; and, every text message sent to or received by a phone which was the property of the City of Brockton, including the Brockton Public Schools, by [an identified person] from September 27, 2021, through June 16, 2022. In a letter to the City dated June 17, 2022, Attorney McKenna modified the timeframe of his request to “…September 28, 2021, through and including October 28, 2021.” 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; 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 Cogliano, Esq. SPR22/1492 Page 2 July 1, 2022 (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) 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 June 28th petition, the City notes that it “…must take approximately 1 minute to review each email for segregable/redactable information. In addition, in order to segregate text messages and create a producible document from a cell phone, we must screen shot and upload all messages from the requested time period prior to reading through them. The City estimates it will take approximately 1 minute per 5 texts sent/received to screen shot and review for redactions.” The City states, “…the above task will take a total of 11.5 hours. This task will 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).” I find in light of 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 The Supervisor of Records 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

Allison Cogliano, Esq. SPR22/1492 Page 3 July 1, 2022 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 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).

Allison Cogliano, Esq. SPR22/1492 Page 4 July 1, 2022 Current Petition In its June 28th petition, the City states, “…the records responsive to this request include reviewing 390 emails and an estimated 1,500 text messages (sent and received) 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; and 2. Information properly withheld pursuant to MGL 6, § 167 (C.O.R.I.) and MGL c. 41, § 97 (juveniles).” Although the City states the records responsive to this request “…requires redaction pursuant to the following Massachusetts statutes,” it has not provided information regarding why such records are likely to contain exempt information. Conclusion I find the City has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Please note, however, this does not preclude the City from charging for segregation and redaction that is required by law. Accordingly, I will consider this matter closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: James P. McKenna, Esq.