Anthony Strong v. Boston, City of - Public Records (SPR 20243381)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 3, 2025 SPR24/3381 Shawn A. Williams, Esq. Records Access Officer City of Boston 1 City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Anthony Strong appealing the response of the City of Boston (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 21, 2024, Mr. Strong requested, “all City of Boston and Boston Fire Department communications referencing [a named individual], or any variations, misspellings, nicknames, acronyms, etc., from January 1, 2023, to the present.” The City responded on November 4, 2024, providing a fee estimate. Unsatisfied with the response, Mr. Strong petitioned this office and this appeal, SPR24/3381, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records 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

Shawn A. Williams, Esq. SPR24/3381 Page 2 January 3, 2025 custodian must provide the responsive records. Fee estimate – 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). 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 Appeal In his appeal petition, Mr. Strong states the following: The City of Boston claims that the requested records contain personnel information exempt under [Exemption (c)]. However, G.L. c. 149, § 52C explicitly grants employees the right to review and obtain copies of their own personnel records. As the records I am requesting pertain directly to me and were used to make decisions regarding my employment, I am entitled to access them under Massachusetts law. … [The attorney-client] privilege does not apply to the communications in question… … The City’s estimate of $5,267.50 to fulfill this request is excessive and appears to include unnecessary redaction and segregation costs. As the records pertain to me and communications involving third parties, extensive redactions are not required. Moreover, municipalities may charge only for the actual costs of complying with a request… As such, I request that this fee be waived. … I respectfully request the following: [1.] Immediate access to the personnel records and communications that pertain to

Shawn A. Williams, Esq. SPR24/3381 Page 3 January 3, 2025 me, as allowed under G.L. c. 149, § 52C and due process principles. [2.] A determination that attorney-client privilege does not apply to communications between City of Boston attorneys and private citizens. [3.] A waiver of the excessive fees cited in the City’s response. Status of the requestor; reason for the request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Therefore, Mr. Strong’s status as the subject of the communications shall have no bearing on the public nature of the record. The City’s November 4th Response In its November 4, 2024 response, regarding reference number R004284-102124, the City provided a fee estimate of $5,267.50 and stated the following: The City has conducted a search of its electronic databases to identify potentially responsive records. This search yielded a total of 12,762 records… It is apparent from an initial review that these records contain material that the law requires be redacted or segregated… For example, these records contain: Privileged attorney-client communications… Additionally, these records contain material that the law deems not to be public records… For example, these records contain: Personnel record information. Records responsive to your request include employees’ personnel record information. These records are not public records under state law and would therefore need to be redacted or segregated before records could be released. See G.L. c. 4, § 7(26)(c). … For your request, the City must review all of the records before they can be released. First, the City must compile the responsive records by reviewing all records to determine which records are exempt pursuant to a specific exemption. As discussed above, a significant portion of these records will contain attorney- client privileged information and personnel records details that are exempt from disclosure. Second, the City must redact and segregate the records to ensure material protected by law is not released, again as discussed above. The City estimates that staff can compile, redact, and segregate approximately one record per minute. At this rate, based on 12,762 potentially responsive records as noted above, the City expects it will take 212.7 hours to compile, redact, and segregate these records. At a rate of $25 per hour, accounting for the

Shawn A. Williams, Esq. SPR24/3381 Page 4 January 3, 2025 first two hours without charge, the corresponding cost of fulfilling [Mr. Strong’s] request would be $5,267.50. Upon review, the City’s fee estimate lacks confirmation that the rate per hour is of the lowest paid employee who is capable of performing the task(s). The City must clarify this. Although the City claims that it is assessing a fee for redactions under Exemption (c) and the attorney-client privilege, it is unclear how the City can assess a fee for redactions under Exemption (c) in this matter. Under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). I am not aware that the City has submitted a petition under G. L. c. 66, § 10(d)(iv). As such, although the City may assess a fee for redactions required by law, it is uncertain whether the fees include time to redact records under Exemption (c). The City must clarify this. For the reasons discussed above, I find the City must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). With regard to Mr. Strong’s objections regarding the City’s claims of exemptions, please be advised that where the City has yet to produce the records, I find these matters cannot be addressed at this time, as the contents of these records are unclear. Once records are provided, Mr. Strong may appeal the substantive nature of the City’s response within ninety calendar days. See 950 C.M.R. 32.08(1). I encourage Mr. Strong and the City to communicate further in order to facilitate producing records efficiently and affordably. Mr. Strong may wish to narrow the parameters or include factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The City must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the City is ordered to provide Mr. Strong with a response to his request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us.

Shawn A. Williams, Esq. SPR24/3381 Page 5 January 3, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Anthony Strong