Paul Sullivan v. Framingham, City of - Public Schools Department (SPR 20181746)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 29, 2018 SPRlS/1746 Philip B. Benjamin, Esq. Benjamin & White, P.C. City of Framingham 600 Worcester Road, Suite 401 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, § lO(c); G. L. c. 66, § lO(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, § lO(c), JO(d)(iv). In a request received by the City on November 7, 2018, Paul Sullivan requested "a copy of all requests, authorization, and approvals of the Framingham School committee for legal services 6-1-17 to date" and also "approvals by the Superintendent of schools for the same time period." 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, § lO(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, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 C.M.R. 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 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

Philip B. Benjamin, Esq. SPR18/1746 Page 2 November 29, 2018 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, § 10( 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 November 21, 2018 petition, the City explains it is seeking "to charge a fee in excess of the maximum hourly rate of $25.00 per hour." The City indicates the records could· contain attorney-client privilege, communication regarding litigation strategy, and personally identifiable information "exempt from disclosure under Public Records Law, M.G.L. c., §7(26) (a) and (c)." The City explains "given the nature of the exempt information, documents must be reviewed for redaction by an attorney, because city employees lack the legal training to assess part of a billing entry is within the exemptions, especially attorney-client privilege." The City estimates the request will take a total of 16.7 hours, "[a]pproximately 6.5 hours for search and segregation time" and "12.2 hours to review and, if/where appropriate, redact exempt information. This estimate is based upon an average of 2 minutes per page." The City notes the total hours is "[!Jess 2 hours not assessed per 950 CMR 32.07 (2)(m)." The City explains the "request covers 17 months" and "there are approximately 366 pages of invoices, which are part of 'request authorization and approvals', plus pages of warrants and coversheets which are part of the approval process for the period of time in the request." The billing rate of the City's legal counsel is $220. 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). However, I decline to approve the City's request for $220.00 per hour. Instead, I find the City may assess a fee not greater than $75.00 per hour for attorney review. Further, it is unclear why the City requires 16.7 hours to produce the records. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). 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;

Philip B. Benjamin, Esq. SPR18/1746 Page 3 November 29, 2018 (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, § 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 ). The City is seeking "an extension of time of 30 business days following receipt of the Supervisor's decision on this Petition and payment of cost estimate to comply with the public records request." In its November 29, 2018, petition the City explains "the additional time is needed to reasonably complete this review and redaction." 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, § 10(c )(i)-(ii). However, the City has not met its burden to explain why 30 days is necessary to complete the request. Please note the extension may begin to run once the City receives payment. G. L. c. 66, § lO(c) (the Supervisor may grant a single extension to a municipality not to exceed 30 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 and the City must detail how it calculated the amount of time needed to produce the records. Further, the City is granted an extension of time to produce responsive records in the manner described above. However, the City must provide supplemental information to meet the burden for a 30 day extension. Mr. Sullivan 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. Sullivan 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, §lO(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to

Philip B. Benjamin, Esq. SPRlS/1746 Page 4 November 29, 2018 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. Sullivan 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). Rebecca S. Murray Supervisor of Records cc: Paul Sullivan