Ronald Alexander v. Framingham, Town of - City Solicitor (SPR 20181757)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 28, 2018 SPR18/1757 Christopher L. Brown, Esq. Petrini & Associates, P.C. City of Framingham 3 72 Union A venue Framingham, MA 01702 Dear Attorney Brown: 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, § lO(c), (d)(iv). On November 6, 2018, and November 8, 2018, the Town received two separate records requests from Mr. Alexander both pertaining to legal invoices for January 2018 and January 2017 respectively. 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; ( 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. 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

Christopher L. Brown, Esq. SPR18/1757 Page 2 November 28, 2018 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 requestor 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, § lO(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 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, § 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. Current petition In its November 20, 2018 petition the City requests "the maximum 30 business day extension" and "to allow the City to charge Mr. Alexander fees in excess of $25 per hour statutory maximum rate to respond to his requests." The City explains "[c]ollectively, the

Christopher L. Brown, Esq. SPR18/1757 · Page 3 November 28, 2018 invoices responsive to the request are from three different law firms, totaling 300 pages. The invoices contain descriptions of privilege attorney-client communications including entries reflecting questions regarding legal advice received from various City officials and entries reflecting legal advice provided to various officials." Further, the City explain "[s]ome of the invoices also include personal information of Framingham Public Schools students that is protected from disclosure under exemption (a) of G.L. c. 4, S. 7, cl 26th, as well as FERPA and DESE regulations." In an email dated November 26, 2018, Mr. Alexander narrowed his request "for January 2017 legal invoices to just 10-20 pages of such invoices." Conclusion Accordingly, I find that in light of Mr. Alexander's modified request it is unnecessary to opine on the City's petition at this time. However, if the City still requires a fee more than $25.00 per hour, it may petition the Supervisor within ten days of the date of modification from Mr. Alexander. G. L. c. 66, § 10(d )(iv). If the City requires additional time to produce the responsive records, it may submit a petition within twenty days of modification seeking an extension of time in accordance with G. L. c. 66 § lO(c). Sincerely, ~~ Supervisor of Records cc: Ronald Alexander