Allison Jenkins v. Everett, City of - Solicitor's Office (SPR 20250681)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 26, 2025 SPR25/0681 Colleen M. Mejia, Esq. City Solicitor City of Everett 484 Broadway Everett, MA 02149 Dear Attorney Mejia: I have received the petition of Allison Jenkins appealing the response of the City of Everett (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 1, 2025, Ms. Jenkins requested the following: [A]ny emails, documents, text messages, or other correspondence where my office, title, or name has been mentioned, particularly from or to the mayor, the chief of staff, the city solicitor, or the complainants mentioned above. The city solicitor’s office participated with Human Resources in a full investigation of me as a result of the complaints. They interviewed multiple staff members about me. I am looking for any documents placed in my personnel file, any findings, dispositions, and the specific complaints made by the individuals above, including but not limited to Human Resources and [a named individual’s] notes. On February 18, 2025, Ms. Jenkins modified her request as follows: I will change my request at this time for emails only where my office, title, or name has been mentioned, particularly from or to the mayor, the chief of staff, the city solicitor, or the complainants mentioned above. This is a simple search of our server and should not require a fee to perform an automated search. The City responded on February 19, 2025, assigned tracking number 2025-0080 to this request, and provided a fee estimate. Unsatisfied with the City’s response, and objecting to the fees, Ms. Jenkins petitioned this office, and this appeal, SPR25/0681, was opened as a result. 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

Colleen Mejia, Esq. SPR25/0681 Page 2 March 26, 2025 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 custodian must provide the responsive records. 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).

Colleen Mejia, Esq. SPR25/0681 Page 3 March 26, 2025 Unclear Appeal In her appeal petition, among other things, Ms. Jenkins states the following: I seek access to any documents in my personnel file, including findings, dispositions, and specific complaints against me. This includes, but is not limited to, Human Resources records and notes taken by [a named individual]. The City of Everett has not responded to this portion of my request. In this case, where Ms. Jenkins modified her request on February 18, 2025, I find that the basis of this portion of her appeal is unclear. Ms. Jenkins is advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). If Ms. Jenkins wishes to submit an additional public records request to the City, and is unsatisfied with the response, she may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1). The City’s February 19th Response In its February 19, 2025 response, the City provides a total fee estimate of $750, and indicates that it will require an estimated 30 hours of time, at an hourly rate of $25. The City further explains the following concerning its fee estimate: The initial search yielded 37,424 emails. The approach taken to calculate a cost estimate was taking an average of 30 seconds per email. Taking that approach the calculation was approximately 311 hours to review and segregate each email to determinate what is responsive and what may be exempt. The City is being extremely generous with sending an estimate for only 30 hours as opposed to 311 hours. Current Appeal In her appeal petition, Ms. Jenkins argues the following: Initially, the City of Everett claimed no relevant emails existed. However, they later asserted that over 37,000 emails required review. This sudden change in position raises concerns regarding the accuracy of their claims and the transparency of their review process. Additionally, I have not yet received the records specifically requested in my clarified FOIA request sent on February 1, 2025. Appropriate Definitions, Parameters, and Time Frames In Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, the Suffolk Superior Court, in its Memorandum of Decision and Order on Defendants’ Motion to Dismiss, stated:

Colleen Mejia, Esq. SPR25/0681 Page 4 March 26, 2025 [The requester] has a right to seek public records from his government, provided he does so in a reasonable manner. [The agencies], in turn, have a right not to be inundated with drain-the-ocean records requests, provided they fulfill the basic expectations of the [Public Records Law] in a fair and transparent manner. See Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, Suffolk Sup. No. 2284CV02061-C, at 3 (February 14, 2023). The Court in Friedman noted, “the extraordinary volume of records called for in this case has compelled the Defendants to produce responsive materials in a ‘rolling’ fashion, rather than in accordance with deadlines contemplated by the [Public Records Law].” Id. at 1. The Court stated that: [T]he parties shall be expected to agree upon, to the greatest extent possible, the following: (a) appropriate definitions, time frames, and parameters regarding substance and scope for the identification of requested documents; (b) appropriate search terms to be used for the retrieval of responsive documents; (c) a reasonable time frame for the production of requested documents, if the statute’s presumptive deadlines are not realistic; (d) appropriate rules to govern the withholding of documents falling within the scope of a statutory privilege or privacy doctrine; and (e) an appropriate methodology for computing the reasonable fees that may be charged for responsive document production. Id. at 2. This office encourages Ms. Jenkins and the City to communicate directly in order to facilitate providing records more efficiently and affordably. Ms. Jenkins may consider further narrowing the scope of her request to enable the City to provide the records more efficiently and affordably. The City must use its superior knowledge of the records to suggest any potential reasonable modifications to the request. See G. L. c. 66, § 10(b)(vii) (a 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 municipality to produce the records sought more efficiently and affordably). Conclusion If outstanding issues remain after Ms. Jenkins and the City communicate further as described above, Ms. Jenkins may file an appeal within ninety (90) days. See 950 C.M.R. 32.08(1).

Colleen Mejia, Esq. SPR25/0681 Page 5 March 26, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Allison Jenkins