Paul Sullivan v. Framingham, Town of - City Solicitor (SPR 20181426)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 5, 2018 SPRlS/1426 Mike Tusino City of Framingham 150 Concord Street Framingham, MA 01701 Dear Mr. Tusino: I have received the petition of Paul Sullivan appealing the response of the City of Framingham (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Sullivan requested "a copy of the response documents provided to the Office of Civil Rights as a result of the request to the Superintendent of schools on April 10, 2018." The City provided its first response on August 23, 2018, acknowledging receipt of the request. In a response dated September 10, 2018, the City provided a fee estimate. Objecting to the fee, Mr. Sullivan petitioned this office and this appeal, SPRl 8/1426, was opened as a result. Fee estimates 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 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

Mike Tusino SPR18/1426 Page 2 October 5, 2018 petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 CMR 32.06(4). The City's September J(Jh response In its September 10, 2018 response, the City indicates that" ... the response documents were in a series of approximately 16 emails sent over an approximately 2 week period of time [and] that there are at least 360 pages or documents included in the response documents." As such, the City assessed a fee of $125. 00 based, on 7 hours to search, segregate and redact responsive documents at an hourly rate of $25.00. Fees to search for, compile, segregate, redact or reproduce a record request The Regulations provide that in cases where necessary to reproduce the requested records a records access officer may charge a fee to search for, compile, segregate, redact or reproduce a record requested based on the hourly rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, § IO(d); see also 950 C.M.R. 32.07(2). Additionally, the reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. Id. A municipality may not charge for segregation and redaction unless required by law or a petition has been filed and approved by the Supervisor of Records. G. L. c. 66, § 10(d ); see also 950 C.M.R. 32.06(4). In its response, the City indicates that "[s]ome of the documents contain personally identifiable information (PII) about students, such as name, address, phone numbers and may contain medical information. Some of this information is exempt from disclosure under the Public Records Law, M.G.L. c. 4, §7(26)(a) and (c)." The City further indicates that "[PII] is exempt from disclosure by federal and state student and family privacy laws. See the federal Family Education Rights and Privacy Act (FERP A); the federal [I]ndividuals with Disabilities Education Act (IDEA), and the state student record statutes and regulations concerning confidentiality of student records information. See 20 U.S.C. § 1232g, 20 U.S.C. § 1400; see also G. L. c. 71, §§ 34D, 60, G. L. c. 71B, §1; and 603 CMR 23.00 et seq. See also Champa v. Town of Weston, 473 Mass. 6 (2015)." As such, the City indicates that "[t]o the extent that the responsive records contain PII, they would need to be redacted, prior to producing copies to [Mr. Sullivan]." The City further explains that "[t]he emails and response documents that were sent to OCR are not organized in the same format as the OCR Data Request. ... Accordingly, it is necessary to review all of the email and response documents to determine whether or not they contain exempt information; it is not possible to exclude a category of documents without reviewing all of the documents." Consequently, the City posits that it will take a total of 7 hours to search, compile, segregate and redact responsive records. The City states that the "[e]stimated time for compiling and segregating requested documents [is] 1.0hour[;] [e ] stimated time reviewing and where

Mike Tusino SPR18/1426 Page 3 October 5, 2018 appropriate redacting documents: at an average of 1 minute per page/document, where at least 360 pages/documents= 6.0 hours." Lowest paid employee The City indicates that "[p]er 950 CMR 32.07 (2)(m), since maximum rate allowable under the Public Records Regulations ($25.00 per hour) exceeds the lowest hourly rate of a person capable of compiling, segregating, and redacting the requested records, [Mr. Sullivan] will be charged at the maximum allowable rate of $25.00 per hour." The City indicates that no fee will be charged for the first 2 hours and estimates that it would "take approximately 7 hours, less 2 hours ... for a net total of 5 hours: ... 5 hours at $25 per hour= $125.00." Assessment off ees In his petition for appeal, Mr. Sullivan contends that "[b]ecause of the time period exceeding 10 days, I do not believe the city can charge me a fee." G. L. c. 66, § IO(e) provides that "[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b ). " See also 950 C.M.R. 32.06(2)(c ). Based upon a review of the file, it is unclear whether the City complied with G. L. c. 66, § IO(e) and 950 C.M.R. 32.06(2)(c) by providing a response to this request within 10 business days under G. L. c. 66, § 1O (b ). Therefore, I find the City may not assess a fee unless it demonstrates that it responded to Mr. Sullivan's request within 10 business days following receipt of the request in compliance with G. L. c. 66, § 10(e ) and 950 C.M.R. 32.06(2)(c ). I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Accordingly, the City is ordered to provide a response to Mr. Sullivan in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, ~~ Supervisor of Records cc: Paul Sullivan