Ronald Alexander v. Framingham, Town of - City Solicitor (SPR 20192112)

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

Rebecca S, Murray Supervisor of Records

October 30, 2019 SPR19/2112

Christopher Brown, Esq. Petrini & Associates, P.C. Counselors at Public Law 372 Union Avenue Framingham, MA 01702

Dear Attorney Brown:

I have received the petition of Ronald Alexander appealing the response of the City of Framingham (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R.

32.08(1). Specifically, in reference to a newspaper article, Mr. Alexander requested to inspect the following records:

“1, ... the email sent by School Committee Chairman . . . as described above. 2. ...the ‘statement’ described in the paragraph above. 3. ...any and all email Sent by [an identified individual] in the month of September 2019.”

The City responded on October 15, 2019, indicating that it did not possess records responsive to item 1, and providing a record responsive to item 2. With respect to item 3, the City provided a fee estimate. Objecting to the fees, Mr. Alexander petitioned this office and this appeal, SPR19/2112, was opened as a result.

Fee estimates — municipalities

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 (two) 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,

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 Brown, Esq. SPR19/2112 Page 2 October 30, 2019

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).

The City’s cost estimate

In its cost estimate, the City indicates that “. . . there are approximately 1,161 emails responsive to [item 3].” The City states that “[s]ome of the emails are likely to contain information that is exempt from disclosure under one or more exemptions in the Public Records Law and will need to be redacted prior to disclosure.” The City states that an exhaustive list of potential exemption categories is not possible until the emails are actually reviewed. However, the City indicates that it anticipates that “. . . the emails may contain personnel information _ protected ... . under exemption (c), inter- and intra-agency emails related to policy positions being developed by the Framingham Public Schools protected . . . under exemption (d), personal information related to the students protected under exemption (a), the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, and DESE regulations, 603 CMR 23.00 et seq, and privileged attorney-client communications protected . . . under the common law attorney- client privilege. . ” Accordingly, the City provides the following cost estimate: “David Heistand, Information Technology . . .. processing emails for review... 1,161 [(emails)]... 1.5 minutes/email = 27.05 hours [at] $25.00, total = $675.63[;] Joanna Hastry . . . review emails for responsiveness/redaction of student PII... 1,161 [(emails)], 15 seconds per email = 4.8375 hours [at] $25.00, total = $120.94.” Subtracting the first 2 hours, the City indicates the total cost is $796.57.

In his appeal petition, Mr. Alexander contends that “[t]he fee estimate includes an item for an Information Technology staff member, David Heistand, to perform ‘processing emails for review’. The Public Records Law allows a municipality to charge for ‘search’, ‘segregation’, and ‘redaction’, but does not allow a municipality to charge for ‘processing for review’.” Mr. Alexander further claims that “[i]t is also unclear what task(s) would be performed by Mr. Heistand, Mr. Heistand is an Information Technology staff member, and would not be responsible for segregation or redaction since he is not an attorney nor is he an administrator. He would not have the proper authorization to view privileged material.”

Based on the City’s cost estimate, it remains unclear how the City may assess a fee for “processing emails for review” under G. L. c. 66, § 10(d)(iii), Particularly, it is uncertain how this task constitutes time to search for, compile, segregate, redact, or reproduce records. Accordingly, I find the City must provide additional information regarding what this task entails and why it is necessary to produce responsive records,

Christopher Brown, Esq. SPR19/2112 Page 3 October 30, 2019

Mr. Alexander further states in his petition, “[t]here is also no explanation of why it would take Mr, Heistand 1.5 minutes for email to perform this task, and the purpose of this task is not explained either.” Based on the City’s cost estimate, it is unclear why Mr. Heistand requires 1.5 minutes to process each email. As such, the City must provide additional information regarding why it requires 1.5 minutes to process each email.

Conclusion

Accordingly, the City is ordered to provide Mr. Alexander with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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.

Lulloena

Ruliecce S. Murray Supervisor of Records

cc: Ronald Alexander