Gloria Pascual v. Framingham, City of - Public Schools Department (SPR 20192058)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

October 16, 2019 SPR19/2058

Amy Kane

City of Framingham

Public Schools Department 73 Mt. Wayte Avenue, Suite 5 Framingham, MA 01702

Dear Ms. Kane:

I have received your petition on behalf of the City of Framingham Public Schools Department (Framingham/Department) requesting permission to charge for time spent segregating or redacting responsive records as well as to charge an hourly rate over $25. G. L. 66, § 10(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv).

On September 26, 2019 the Department received a request for records from Gloria Pascual for “[a]ll records consisting of communications between or among individuals or entities (i.e. lawyers, law firms, etc.), whether paid or otherwise compensated for their service or information made available to the school committee Chair, Superintendent of Schools, and the HR Director which contains any mention of or reference to Gloria Pascual (other than as an addressee on such communications) from January 1, 2018 to September 26, 2019.” The request was subsequently modified to limit the dates from June 1, 2019 to September 26, 2019.

Petition to Assess Fees

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, § 10 (d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4).

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. G. L. c. 66, § 10(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 SPR19/2058 Page 2 October 16, 2019

The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose.

The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id.

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, 950 C.M.R, 32. 06(4)(g).

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 ofa — public record. G. L. c. 66, § 10(d)(i).

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.

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, § 10(d)(iv).

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). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g).

Current Petition

In its October 8" petition, the Department indicates “[t]he records request specifically states that the requested records include communications between the School Committee Chair, Superintendent of Schools and the HR Director and their attorneys.” You also note that the records contain materials subject to attorney-client privilege and communications regarding

Amy Kane . SPR19/2058 Page 3 October 16, 2019

collective bargaining and/or litigation strategy. The Department cites Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 445-446 (2007) and G, L. c. 30A, § 21(a)(3) in support of its position.

The Department further asserts that “given the legal nature of the anticipated exempt information, it is necessary that the requested records be reviewed by Framingham’s attorneys to determine the information that will need to be redacted. Accordingly, Framingham is requesting that it be allowed to charge fees in excess of the $25 per hour statutory maximum rate to respond to this request.” You indicate that “Framingham requests that it be allowed to charge the rate that the City pays such the attorney to do the review, which is $220.00 per hour.”

Based on the information provided in its petition regarding the type of responsive records and the extent to which these records may contain exempt material, I find the Department has demonstrated how the request could not be prudently completed without the redaction or segregation. As a result, I find the Department may assess a fee for the time spent segregating or redacting the requested records, See G. L. c. 66, § 10(d)(iv).

With respect to the Department’s petition to be allowed to charge in excess of $25 per hour, I find that in light of the factors in G. L. c. 66, § 10(d)(iv), the Department may assess a fee of $75.00 per hour for attorney review to redact responsive records.

The Department has also demonstrated that the fees are not being levied to limit, deter, or prevent access to records, nor are the fees a result of charging the requestor a premium due to poor records management practices by the Department.

Conclusion

For the reasons described above, I will allow the Department to assess a fee for the time spent segregating and redacting responsive records. Further, the Department may charge for redaction fees in excess of $25 per hour for the provision of the requested records. However, this allowance i is limited to the rate of $75.00 per hour.

I understand Ms. Pascual has appealed the Department’s fee estimate associated with producing these responsive records. This office will address Ms, Pascual’s objections to the fee estimate during the review of said appeal.

Please note, Ms. Pascual 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), 10A(c).

Sincerely,

Rebecca S. a Mannan

Supervisor of Records ce: Gloria Pascual