Massachusetts Records Requestor v. Brockton, City of (SPR 20221954)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 31, 2022 SPR22/1954 Allison M. Cogliano, Esq. Assistant City Solicitor Brockton City Hall 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, the City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On August 10, 2022, the requestor submitted four separate requests for all of the Mayor’s phone bills, written correspondence, appointment calendar, and emails from 2021. 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; (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. SPR22/1954 Page 2 August 31, 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). Request for Additional Time to Produce Responsive Records In its August 24, 2022 petition, the City provides the following information: The City estimates it would take the Mayor approximately ten minutes per month to [redact the phone bills] as telephone numbers are not labeled on the phone bills and he would need to individually check each number before public disclosure. This totals 120 minutes or two hours. . . . As Chief Executive Officer for the City of Brockton, Mayor Sullivan sends and receives, on average, 20 written letters per week, totaling approximately 1,040 letters from 2021 to be reviewed for the [below]-mentioned redactions and/or segregations. As Chief Executive Officer for the City of Brockton, Mayor Sullivan sends and receives, on average, 60 emails per day, totaling approximately 21,900 emails from 2021 to be reviewed for the [below]-mentioned redactions and/or segregations. If designating only one minute per letter/email, the City estimates it would take approximately 22,940 minutes or 382 hours and 20 minutes to complete a review of the written correspondence and emails sent and received by Mayor Sullivan for 2021. Finally, in order to produce Mayor Sullivan’s appointment calendar, in order for each appointment to be legible, each individual day would need to be printed. The City estimates it would take one minute per week, or 52 minutes. In total, the City estimates it would take a total of approximately 23,112 minutes or 385 hours (55 business days) to respond to this request.

Allison M. Cogliano, Esq. SPR22/1954 Page 3 August 31, 2022 Based on the information provided by the City, I find that in light of the need to search for, collect, segregate and examine the records, the capacity of the City to produce the request without the extension, and the efforts undertaken by the City in fulfilling the current request, the City has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The City is granted an extension of 30 business days. Please note the time may begin to run once the City receives payment. G. L. c. 66, § 10(c). Petition to Assess Fees – Municipalities 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. 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 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 2 (two) 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

Allison M. Cogliano, Esq. SPR22/1954 Page 4 August 31, 2022 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 petition, the City provides the following information concerning its need to segregate and redact the responsive records: In order to produce all of Mayor Sullivan’s written correspondence and emails for 2021, the Mayor or his designee would need to read through each letter and email, sent or received, and segregate or redact pursuant to the following: • As Chief Executive Officer for the City, correspondence between Mayor Sullivan and representatives of the various public health and safety city departments, including but not limited to the Brockton Police Department, the Brockton Fire Department, the Brockton Board of Health, and the Brockton Emergency Management Agency, may contain information that is exempt from public record pursuant to G. L. c. 4, § 7(26)(c), G. L. c. 4, § 7(26)(f), G. L. c. 4, § 7 (26)(n), G. L. c. 4, § 7 (26)(o), G. L. c. 6, § 167 (C.O.R.I), and G. L. c. 66, § 10B; • As appointing authority for the City, correspondence between Mayor Sullivan and the City’s Personnel Director and City Department heads concerning personnel matters may contain information that is exempt from public record pursuant to G. L. c. 4, § 7(26)(c), G. L. c. 4, § 7(26)(b), G. L. c. 4, § 7(26)(d), and G. L. c. 4, § 7 (26)(o); • As Chief Executive Officer for the City, correspondence between Mayor Sullivan and any legal counsel for the City may contain information that is exempt from public record pursuant to 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; • Correspondence between Mayor Sullivan and the Superintendent of Schools and/or Brockton Public Schools personnel may contain information that is exempt from public record pursuant to G. L. c. 71, § 34D, 34E, G. L. c. 4, § 7(26)(c), G. L. c. 4, § 7(26)(b), G. L. c. 4, § 7(26)(d), and G. L. c. 4, § 7 (26)(o); • As Chief Executive Officer and appointing authority for the City, correspondence between Mayor Sullivan and the City’s Chief Financial Officer

Allison M. Cogliano, Esq. SPR22/1954 Page 5 August 31, 2022 and the City’s collective bargaining team may contain information that is exempt from public record pursuant to G. L. c. 4, § 7(26)(d); and • As Chief Executive Officer for the City, correspondence between Mayor Sullivan and any other individuals, including city residents and community outreach workers, may contain information that is exempt from public record pursuant to G. L. c. 4, § 7(26)(c), MGL. c.214, § 1B, MGL c.93H. 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 fee for the segregation and redaction of such exempt material. Conclusion Accordingly, I find the City has established good cause for a time extension of 30 business days as described above. Additionally, to the extent the responsive records contain the exempt information described above, the City may assess a fee for segregation and redaction. This office encourages the requestor and the City to communicate directly to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification to the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). 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(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: massachusettsrecordsrequester@gmail.com