Paul Sullivan v. Framingham, City of - Public Schools Department (SPR 20190631)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 8, 2019 SPR19/0631 Amy Kane Framingham Public Schools Department 73 Mt. Wayte A venue Suite #5 Framingham, MA 01702 Dear Ms. Kane: I have received the petition of Paul Sullivan appealing the response of the Framingham Department of Public Schools (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on March 6, 2019, Mr. Sullivan requested "a copy of all rental agreements made for the use of school athletic, gymnasiums, rooms, equipment or other facilities with any outside group or organization during the 2018-2019 school year." On March 20, 2019 the Department responded to Mr. Sullivan's request with a fee estimate. Unsatisfied with this response, Mr. Sullivan petitioned this office, and this appeal, SPRl 9/0562 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 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, § lO(d)(iv). 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

Amy Kane SPR19/0631 Page 2 April 8, 2019 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 --petifioiiuiidefG:L-:-c.-66; §TOrdJCivJ. See G. :C. c. 66, § 1U-(uJ(iiiJ~950--C:lv[K-JZ:0-6(4J:_ ___ ------- Appeal The Department estimates it will take approximately 8 hours to search for and segregate the responsive records at an hourly rate of $25 per hour. The Department explained that the hourly rate of the lowest paid employee capable of performing the task exceeds the maximum allowable rate under G. L. c. 66, § lO(d)(iii). G. L. c. 66, § 1O (e) In his appeal petition Mr. Sullivan questioned the Department's ability to assess the fee under G. L. c. 66, § lO(e). Specifically, he asserted that "the time has expired to provide a proper response and the [Department] has not provided the exemptions to justify the cost estimate for the segregation [or] redaction of these records." G. L. c. 66 § lO(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)." I find the Department must clarify whether it complied with G. L. c. 66 § I 0(e ) . Specifically, it must demonstrate whether it provided a response to Mr. Sullivan's request under G. L. c. 66, § lO(b) within 10 business days of receipt of the request. See G. L. c. 66, § lO(b)(i) (ix) (outlining the requirements of a records custodian's written response to a requestor). Reasonableness off ee estimate; segregation and redaction time In the event that the Department can demonstrate that it complied with G. L. c. 66, § 10(e ), it is necessary to analyze the reasonableness of the fee estimate. As described above, the Department's March 201 h response indicates that the search and segregation of documents responsive to Mr. Sullivan's request will take approximately 8 hours. However, I find the Department must explain why 8 hours will be needed to produce the records. Specifically, it must describe how much time will be needed to search for the records versus how much time will be needed to segregate and/or redact. Further, whereas it does not appear the Department submitted a petition to assess fees for the time to segregate/redact, the Department must explain whether the redactions are required by law. See G. L. c. 66, § lO(d)(iii) (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 petition under G. L. c. 66, § 10(d )(iv)); 950 C.M.R. 32.06(4 )(g). Please note that 950 C.M.R. 32.06(4 )(g) provides that "petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records."

Amy Kane SPR19/0631 Page 3 April 8, 2019 Conclusion ------------------------Accordirrgly-;-the-:Separtmentis-ordered-to-provi-de-Mr.-S-uHivarra---responseirra----manrre·-r----- consistent with the Public Records Law, its Regulations, and this order within 10 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, Rebecca S. Murray Supervisor of Records cc: Paul Sullivan