Walter Jacobs v. Lawrence, City of - City Attorney's Office (SPR 20243060)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 18, 2024 SPR24/3060 Eileen O’Connor Bernal City Clerk City of Lawrence 200 Common Street, Room 107 Lawrence, MA 01840 Dear Ms. Bernal: On November 12, 2024, this office received your petition on behalf of the City of Lawrence (City) seeking an extension of time to produce records and requesting permission to assess fees for time spent segregating and redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the City furnished a copy of the petition to the requestor, Attorney Walter H. Jacobs, of W. Jacobs & Associates At Law, LLC. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On October 28, 2024 and October 29, 2024, Attorney Jacobs requested the following records: [1] Copies of all reports submitted to the Mayor’s Office by Maverick Investigative Services LLC on October 17, 2024, and October 21, 2024 regarding “Forensic Extraction” and the “Electronic Forensic Investigation” of Owens’ city cell phone or other city property[;] [2] Copies of all electronic files submitted to the Mayor’s Office by Maverick Investigative Services LLC on October 17, 2024, and October 21, 2024 regarding “Forensic Extraction” and the “Electronic Forensic Investigation” of Owens’ city cell phone or other city property[;] [3] Copies of all phone communication, text message communication, and E- mails (incoming and outgoing) between Personnel Director [identified individual], officials of the Lawrence Police Department and POST as follow...[;] [4] Copies of all documents or electronic media submitted to POST by any of the above-mentioned law enforcement officials, former Personnel Director [identified individual], former Personnel Director [identified individual], Personnel Secretary 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

Eileen O’Connor Bernal SPR24/3060 Page 2 November 18, 2024 [identified individual], and/or any other employee or department of Lawrence regarding Castro[;] [5] Copies of all investigations of Castro done by or on behalf of Lawrence (whether complete or provisional) that relate to his employment as Lawrence's Provisional Police Chief or involve any allegations of misconduct on his part[;] [6] Copies of all reports by [an identified individual] and/or Comprehensive Investigations and Consulting[;] [7] Copies of all city contracts with [an identified individual] and/or Comprehensive Investigations and Consulting[;] [8] Copies of all documents or electronic media submitted to POST by the Lawrence Police Department, Personnel Department, any department or employee of Lawrence regarding Castro. 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 (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.

Eileen O’Connor Bernal SPR24/3060 Page 3 November 18, 2024 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). Current Petition In its petition, the City requests “for an extension of time, not to exceed 30 business days” and provides the following information in support of its request: [T]he request, as presently constituted, encompasses a potentially large volume and broad range of records “in reference to” Castro. He interacted with every department in the City and several external law enforcement agencies and many of the records sought will contain sensitive information requiring segregation and redaction to prevent unlawful disclosure. A significant effort would be needed in order to collect the records “in reference” to Castro. ... [A]lthough city employees work 35 hours each week to complete their regular duties, there is no dedicated staff assigned to review and redact records responsive to FOIA requests. As such, the records sought by the present request would need to be segregated and redacted during normal business hours in addition to competition of regular duties. In light of the need to collect, segregate and examine the records, as well as the capacity of the City to produce the records without an extension, 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).

Eileen O’Connor Bernal SPR24/3060 Page 4 November 18, 2024 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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 requests that it be permitted “to charge fees for segregating and redacting records.” In support of its request, the City provides the following information: [S]ince Castro was involved in hiring officers and promotions of sergeants, lieutenants, and captains, he had considerable interaction with the City Personnel Department concerning civil service lists, requests, promotions, assessment centers, procedures, practices and related activities. As Provisional Chief, he was also responsible for police management, staffing, grievances, progressive discipline, investigations and internal affairs matters. ...

Eileen O’Connor Bernal SPR24/3060 Page 5 November 18, 2024 [U]nder the circumstances, there is no doubt that the records sought by this request, as presently constituted, are subject to: G. L. c 4, §7(26), exemption (b) records related solely to internal personnel rules and practices; exemption (c) personnel and medical files or information and other materials related to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of privacy; exemption (d) the deliberative process exemption involving inter-agency and intra-agency memoranda and letters on legal and policy matters; exemption (f) investigatory materials necessarily compiled out of public view by law enforcement or other investigatory officials the disclosure of which would probably prejudice effective law enforcement or not be in the public interest; exemption (j) allowing custodians of firearms records to withhold in the applications and licenses of firearm license holders; and exemptions (o) and (p) regarding withholding the name, home address, personal email and telephone number of government employees and their family members. ... [I]n addition, all confidential communications between Castro, in his capacity as Provisional Police Chief, and the City Attorney for the purpose of obtaining legal advice and assistance are protected from disclosure under the attorney-client privilege. Suffolk Con tr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444,450 (2007). 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 segregation or redaction. 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 As described above, I find that the City has established good cause for a time extension of 30 business days. Accordingly, I find the City has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the City may assess a fee for segregation and redaction. Further, I encourage the parties to communicate further to enable the City to provide records in an efficient and affordable manner. When preparing a fee estimate for the provision of the requested records, the City is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The City must provide a response to Attorney Jacobs within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4).

Eileen O’Connor Bernal SPR24/3060 Page 6 November 18, 2024 Please note, Attorney Jacobs 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: Walter H. Jacobs, Esq. Kevin P. Foley, Esq.