Robert W. Sibilio v. Framingham, City of - Mayor's Office (SPR 20180390)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 2, 2018 SPRlS/390 Nichol M. Figueiredo Public Information & Records Access Officer/Webmaster City of Framingham 150 Concord Street Framingham, MA 01702 Dear Ms. Figueiredo: I have received your petition on behalf of the City of Framingham (City) seeking to charge a fee in excess of $25 an hour. G. L. c. 66, § 10( d)(iv). The City also requested additional time to produce responsive records. G. L. c. 66, § lO(c); see also 950 C.M.R. 32.06(4). As required by law, the City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c ), (d)(iv). On March 12, 2018, Robert Sibilio requested "[a]ny emails or outlook calendar requests" pertaining to six individuals from September 1, 2014 and March 5, 2018. In the City's March 26, 2018 petition you note the City "requests to charge a fee in excess of the maximum hourly rate of $25.00 per hour and here by request an extension of time of 30 business days to comply with the following public records request submitted by Robert Sibilio (also copied on this petition) .... " 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; 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

Nichol Figueiredo SPR18/390 Page2 April 2, 2018 (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 expeditiolts disclosure. G. L. c. 66, § lO(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 requester within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4 )(b ). Petitions for ability to assess fees Municipalities may not assess a fee for the first 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. 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 (Supervisor) under a petition under G. L. c. 66, § 10(d )(iv). See G. L. c. 66, § 10(d )(iii); 950 CMR 32.06(4). 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, the fee is necessary such that the request could not have been prudently completed without the redaction, segregation or fee in excess of $25 per hour, and the amount of the fee is reasonable and the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § lO(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. Id.

Nichol Figueiredo SPR18/390 Page 3 April 2, 2018 Current petition In its March 26, 2018, petition the City is requesting "to charge a fee in excess of the maximum hourly rate of $25.00 per hour and here by request an extension of time of 30 business days to comply with the following public records request submitted by Robert Sibilio." The City explains "[t]he search of the City of Framingham email server can only be performed by the Director of Technology Services or the Assistant Director of Support. The Assistant Director of Support is paid $51.42 per hour and is the lowest paid employee to perform this search. It is also estimated that it will take approximately 12 to 15 hours to perform the search." Further, the City explains "the emails will need to be reviewed for privileged communications and other exempt information, like exemption (f) or exemption (c) by the City Solicitor's office (Petrini & Associates, P.C.), which will take approximately 40 to 50 hours at a rate of $225.00 per hour." In an email dated April 2, 2018, the City seeks clarification of the scope and suggests Mr. Sabilio modify or narrow his request to allow the City to response more efficiently. Under the updated Public Records Law and Access Regulations, a municipality, when appropriate, can suggest a reasonable modification of the scope of the request or offer to assist the requester to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably. G. L. c. 66, § IO(b )(vii); 950 C.M.R. 36.06(2)(g). Conclusion Accordingly, I find that in light of the City's April 2nd email suggesting a modification of the request, it is unnecessary to opine on the City's petition to relieve it of its obligation to fulfill the request at this time. See G. L. c. 66, § 1 O(b )(vii); see also G. L. c. 66, § IO(a)(i) (a request must reasonably describes the public record sought). Upon receiving clarification from Mr. Sibilio about the scope of this request, the City must provide the records in a manner consistent with the Public Records Law and its Regulations. However, if the City requires a fee more than $25.00 per hour, it may petition the Supervisor within ten days of the date of clarification from Mr. Sibilio. G. L. c. 66, § lO(d)(iv). If the City requires additional time to produce the responsive records, it may submit a petition within twenty days of clarification seeking an extension of time in accordance with G. L. c. 66 § lO(c). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Robert Sibilio