Ronald Alexander v. Framingham, Town of - City Solicitor (SPR 20190489)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 12, 2019 SPR19/489 Christopher L. Brown, Esq. Petrini & Associates, P.C. City of Framingham 372 Union Avenue Framingham, MA 01702 Dear Attorney Brown: I have received your petition on behalf of the City of Framingham (City) seeking relief from its obligation to produce responsive records, 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, § 10(c ); G. L. c. 66, § 10(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 ). On February 20, 2019, Ronald Alexander indicated "I request to inspect all email Sent by Joanna Hastry, Administrative Assistant to the Framingham, MA School Committee, in calendar years 2018 and 2019. Please note that, per the Public Records Law, the responsive records provided must be in searchable electronic format, with all electronic mail fields preserved, including but not limited to Date:, To:, From:, Cc:, Bee:, Subject:, Attachments:, Body:, etc." I understand that the City responded to this request on March 5, 2019 and submitted a petition to this office on the same day. Current petition In its March 5th petition the City indicates there are over 7,500 emails responsive to this request, many of which may be exempt from disclosure under several exemptions to the Public Records Law. You note that "Ms. Hastry, as the Committee's lone assistant, is already occupied with the day-to-day coordination of the Committee's business, including responding to the myriad other public records requests that Mr. Alexander has submitted in the past 6 months. Similarly the School's legal counsel is engaged on a number of matters and cannot focus solely on the task ofresponding to Mr. Alexander's many public records requests, let alone this present overbroad request." 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. SPR19/489 Page 2 March 12, 2019 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. 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). Request for relieff rom obligation to produce responsive records The City provides information about past public records requests as well as the large amount of time necessary to respond to Mr. Alexander's February 20th request. You indicate that "[t]he City urges the Supervisor to find based on this information, and any further information that the Supervisor uncovers in its own investigation of this petition, that Mr. Alexander's broad request of February 20, 2019 discussed above is part of a series ofrequests 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 .... ' G.L. c. 66, s. lO(c)(vi). The City requests that based on such determination, that the Supervisor either further extend the time for the City's response to this request (beyond the additional 30 business days requested below) or relieve the City from having to respond to it altogether."

Christopher L. Brown, Esq. SPR19/489 Page 3 March 12, 2019 Extension oft ime to produce responsive records The City asserts that a significant amount of time is needed to review the records for exempt material, including student information. As a result, the City" ... requests that the Supervisor allow the City the maximum 30 business day extension pursuant to G.L. c. 66, s. lO(c), in addition to the 25 business days the City has communicated to Mr. Alexander in its initial response to his request, to produce the records responsive to Mr. Alexander's request of February 20, 2019 following his payment of the City's fee estimate." 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. The City asserts "[g]iven the anticipated exempt information that will be in the emails responsive to Mr. Alexander's request, some of which the City is required to redact by law such as the student record information described previously, the City requests that it be allowed to charge for the time that will be spent segregating and redacting the records prior to making them available to Mr. Alexander pursuant 950 CMR 32.06(4)(h)." The City also seeks permission to charge Mr. Alexander fees in excess of the $25 per hour; specifically, it seeks to charge Ms. Hastry's hourly rate of $31.87 for review and $225 per hour for counsel review.

Christopher L. Brown, Esq. SPR19/489 Page 4 March 12, 2019 Modification of request Subsequent to the opening of this petition, Mr. Alexander submitted a modified request on March 6th_ This request seeks "to inspect all email Sent by Joanna Hastry, Administrative Assistant to the Framingham, MA School Committee, between 5:00 a.m. on February 20, 2019 and 11 :00 p.m. on February 28, 2019. Please note that, per the Public Records Law, the responsive records provided must be in searchable electronic format, with all electronic mail fields preserved, including but not limited to Date:, To:, From:, Cc:, Bee:, Subject:, Attachments:, Body:, etc." (emphasis in original). In his March 6th email Mr. Alexander indicates "[p] lease note the narrowing of my request below. As this represents a major narrowing of my original request (attached hereto), I do not believe there is any reason to pursue the SPR19-489 Time Petition at this point." Conclusion Accordingly, I find that in light of Mr. Alexander's modified request it is unnecessary to opine on the City's March 5th petition at this time. However, if the City still requires a fee more than $25.00 per hour, it may petition the Supervisor within 10 days of the date of modification from Mr. Alexander. G. L. c. 66, § lO(d)(iv). If the City requires additional time to produce the responsive records, it may submit a petition within 20 days of modification seeking an extension of time in accordance with G. L. c. 66 § lO(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Ronald Alexander