Ronald Alexander v. Framingham, City of - Mayor's Office (SPR 20180503)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 23, 2018 SPRlS/503 Nichol M. Figueiredo Public Information & Records Access Officer/Webmaster City of Framingham 150 Concord Street Framingham, MA 01702 I have received your petition on behalf of the City of Framingham (City) seeking an extension of time to produce records, and a waiver of statutory limits on fees that may be assessed in responding to the requests. G. L. c. 66, § IO(c); G. L. c. 66, § IO(d)(iv); 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 ), 10(d )(iv). In a request received by the City on April 4, 2018, Ronald Alexanderrequested "to inspect all invoices and evidence of payment for legal services between the City of Framingham, MA and any and all attorneys and/or legal firms for the period January 1, 201 7 to the present." Current petition 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, § IO(d)(iv). See G. L. c. 66, § lO(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 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 M. Figueiredo SPR18/503 Page2 April 23, 2018 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. In its April 13, 2018 petition, the City explains it is seeking to charge a fee in excess of the maximum hourly rate of $25.00 per hour to comply with Mr. Alexander's request. You note that the responsive records "contain detailed billing entries which describe in part privileged attorney-client communications, and other information exempt from disclosure such as student record information for special education legal services billing." With respect to the type of review needed, you explain the records "must be reviewed for redaction by attorneys at the respective firms, who charge Framingham well in excess of the $25 per hour rate to provide this service to Framingham. City employees lack the legal training to assess what part of a billing entry is or is not an attorney-client privileged communication." Attorney Christopher Brown confirmed that the hourly rates charged to the City exceed $75 an hour. 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 redaction, segregation or by assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d )(iv); SPRI 8/176 Determination of the Supervisor of Records (February 22, 2018). In light of the factors in G. L. c. 66, § lO(d)(iv), I find the City may assess a fee of $75.00 per hour for attorney review. The City has also demonstrated that the fees are not being levied to limit, deter, or prevent access to records, nor are the fees a result of charging the requestor a premium due to poor records management practices by the City. Extension oft ime The City is seeking "an extension of time of 30 business days (beyond the 25 business days permissible for a response at the local level)" to comply with Mr. Alexander's request. 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;

Nichol M. Figueiredo SPR18/503 Page 3 April 23, 2018 (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, § IO(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). In its April 13th determination, the City asserts "the legal services provided to Framingham by Petrini & Associates, P.C. alone concern various matters, and the monthly detailed invoices for all matters typically are in excess of 75 pages per month. Other firms providing legal services to the City also provide detailed invoices that will take time to review and redact." With respect to the time needed to provide the records, the City indicates "[i]t will take at least 40 hours to review and redact the privileged information from the invoices for the time period requested. The additional time is needed to reasonably complete this review while also undertaking their other duties providing services to Framingham and other clients." I find that in light of the volume ofresponsive records, the need to segregate or examine records, and the scope of redaction required to prevent unlawful disclosure, the City has established good cause to permit an extension of time. G. L. c. 66, § lO(c)(i)-(ii). I hereby grant the City an extension of fifteen business days beyond the time allowed in G.L. c. 66, § lO(b)(vi) (a municipality may provide a timeframe not to exceed 25 business days to produce responsive records). Please note the extension may begin to run once the City receives payment. G. L. c. 66, § 10(c ) (t he Supervisor may grant a single extension to a municipality not to exceed 3 0 business days). Conclusion For the reasons described above, I will allow the City to charge for segregation fees in excess of $25 per hour for the provision of the requested records. However, this allowance is limited to the rate of $75.00 per hour. The City must provide the records in compliance with this determination, the Public Records Law, and its Access Regulations.

Nichol M. Figueiredo SPR18/503 Page 4 April 23, 2018 Further, the City is granted an extension of time to produce responsive records in the manner described above. Mr. Alexander may appeal the substantive nature of the City's response within ninety (90) days. See 950 C.M.R. 32.08(1). This office encourages Mr. Alexander and the City to communicate further to facilitate providing records efficiently and affordably. See G. L. c 66, § 1O (a)(i). The City must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, §J O(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 agency to produce records sought more efficiently and affordably). Please note, Mr. Alexander 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(d)(iv)(4), lOA(c). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Ronald Alexander