Ronald Alexander v. Framingham, City of (SPR 20190710)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 10, 2019 SPR19/0710 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 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, § 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). On March 24, 2019, Ronald Alexander requested "to inspect all email messages since July 1, 2018 where one or more of the following strings occurs in the Subject: or body of message: 1. 'student activity', 2. 'audit', 3. 'audits."' 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 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. SPR19/0710 Page 2 April 9, 2019 (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) shaUpr0-videaninitialresponseto a-rgquestorwi-thin-tenbusi-m~ssdays-afterreceipt-0-f a request for public records. 950 C.M.R. 36.06(4)(b). Request for relieff rom obligation to produce responsive records The City in its petition for relief requests "that Mr. Alexander's broad request of March 21, 2019 ... is part of a series of 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 ... .' 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." In support of its request for relief, the City provides "[h] is past requests include similar overbroad requests seeking all emails sent by several members of the School Committee ... and other officials. After putting the School Department through the staff time and effort to provide good faith estimates, Mr. Alexander has neither not proceeded with or narrowed almost all of these requests in an effort to avoid having to compensate the City." The City explains "[c ]ommon strategies he has employed including submitting multiple requests for the same or similar type of information ... and dividing requests for the same type of information across multiple authors and dates." Further, the City states "[t]he current request seeks emails related to previous public records requests." 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 March 21, 2019 following his payment of the City's fee estimate."

Christopher L. Brown, Esq. SPR19/0710 Page 3 April 9, 2019 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 . (SupeI"Visor} underapetitio.n under G. L. c.66, §lO(d)(iv). SeeG. 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 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, § lO(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 the City seeks to charge for Mr. Carpenter's hourly rate of $73 .29 for the "retrieval process to search and assemble emails," as well as Ms. Hastry' s hourly rate of $225 for "review and redaction of potentially exempt records." Modification of request Subsequent to the opening of this petition, Mr. Alexander submitted a modified request on April 9th. This request seeks "to inspect all email messages since July 1, 2018 Sent by Lincoln D Lynch IV, Executive Director of Finance and Operations for the Framingham Public Schools to anyone, where one or more of the following strings occurs in the Subject ... " In his April 9th

Christopher L. Brown, Esq. SPR19/0710 Page 4 April 9, 2019 email Mr. Alexander indicates "I am not in a position to pay you $236,925.00 for public records, I hereby narrow my original request." Conclusion Accordingly, I find that in light of Mr. Alexander's modified request it is unnecessary to opine on the City's April 3rd 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