Heather Hoffman v. Cambridge, City of - Office of the City Clerk (SPR 20241762)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 18, 2024 SPR24/1762 Seah Levy Public Records Access Officer City of Cambridge – Law Department City Hall, 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: On June 12, 2024, this office received your petition on behalf of the City of Cambridge (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 the petition to the requestor. G. L. c. 66, § 10(c). On May 28, 2024, Heather M. Hoffman, Esq. requested “all written communications to or from [an identified individual] about Linear Park from January 1, 2020, to date. This would include but not be limited to emails, texts or other similar messages, memos…, meeting notes, and phone call summaries.” Subsequent to the opening of this petition, in an email to this office and the City on June 13, 2024, Attorney Hoffman states, “I have no objection to a reasonable extension of time, but I strongly object to the fee request.” 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; 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 SPR24/1762 Page 2 June 18, 2024 (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). Current Petition In its June 12th petition, the City “requests… forty (40) business days… to fulfill this request.” In support of its request, the City states that it “anticipates that if it is required to answer this request… it will be required to spend a substantial amount of time on this request for several months, to the detriment of other public records requests.” The City explains that in a May 30, 2024 email to Attorney Hoffman, the City indicated that the individual identified in the request is “currently out of the office, and it would not be possible to involve [them] in this search at this time, particularly with regards to text messages.” Moreover, “the initial email search conducted with the words [‘]linear park[’] within the email account for [an identified individual]… produced at least 7 GB of responsive records.” Further, “on June 11, 2024, [the City] sent [Attorney Hoffman] a sample response containing forty-five (45) emails and their attachments produced in the City’s search, equal to 226 pages in PDF format.” The City notes that “[p]roviding this sample set of emails required approximately five hours of staff time” and that “[b]ased on the time taken to produce this sample, the City anticipates that a full response to this request will require an unknown but extremely large number of hours of time to complete.” Finally, the City states the following in regards to the portion of the request concerning “[‘]texts or similar messages, memos…, meeting notes, and phone call summaries[’] made by [an identified individual]… for a period of approximately three and a half years[:]” This portion of the request will necessarily involve… [an identified individual] to locate records, in electronic or physical form, that contain the words “linear park.” Given the lack of additional terms and the large time frame of [Attorney Hoffman’s] request as currently presented, many more hours would be required in order . . . to undertake the work . . . necessary, which would also require [an identified individual] to engage in searches in addition to [their] day-to-day duties…. Additionally, the Law Department would be required to work with [an identified individual] to identify which… communications produced through the email production would be exempt from disclosure as the subject of ongoing policy deliberations or other exemptions. In light of the need to collect, segregate and examine the records, as well as the scope of redaction required to prevent unlawful disclosure, the capacity of the City to produce the request

Seah Levy SPR24/1762 Page 3 June 18, 2024 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. Petition to Assess Fees – Municipalities The 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 (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).

Seah Levy SPR24/1762 Page 4 June 18, 2024 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 under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 10 C.M.R. 32.06(4). The City submitted its petition on June 12, 2024, more than ten business days after receipt of the request. In light of the fact the City has not demonstrated it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records cannot be granted. 950 C.M.R. 32.06(4)(d). Conclusion Accordingly, it is my determination that the City has established good cause for a time extension of 30 business days as described above. However, in light of the fact that the City has not demonstrated it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records cannot be granted. 950 C.M.R. 32.06(4)(g). Please be advised, however, this does not preclude the City from charging for segregation and redaction that is required by law. I encourage the parties to communicate further to enable the City to provide records in an efficient and affordable manner. 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: Heather M. Hoffman, Esq.