Framingham Reporter v. Framingham, City of - Public Schools Department (SPR 20192114)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pen1isor ofR ecords October 18, 2019 SPR19/2114 Amy Kane City of Framingham Public Schools Depaiiment 73 Mt. Wayte A venue, Suite 5 Framingham, MA 01702 Dear Ms. Kane: I have received your petition on behalf of the City of Framingham Public Schools Depaiiment (Framingham/Depaiiment) 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, § lO(d)(iv). On October 9, 2019 the Department received a request for records from Framingham Reporter 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." Framingham 's Petition to Assess Fees A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction 1s 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, § 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 SPR19/2114 Page 2 October 17, 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, § lO(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 of a public record. G. L. c. 66, § lO(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, § 1O (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). 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, § lO(d)(iv). See G. L. c. 66, § lO(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 Oct~ber 16th 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 SPR19/2114 Page 3 October 17, 2019 collective bargaining and/or litigation strategy. The Depaiiment 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 Depaiiment 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 request that Framingham "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, § lO(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, § lO(d)(iv), the Department may assess a fee of $75.00 per hour for attorney review to redact responsive records. The Depaiiment 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. Framingham 's time petition Under the Public Records· Law, upon a showing of good cause, the 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 pa1i 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).

Amy Kane SPR19/2114 Page 4 October 17, 2019 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). The Depaiiment claims that "the magnitude of the request" and the need for attorneys to review the estimated responsive 5,313 emails requires "an extension of time of 30 business days in addition to statutory allotted time." · Based on its petition, I find that in light of volume of responsive records and the actions required of the Department, the Depaiiment has established good cause to permit an extension of time. I hereby grant the Department an extension of 25 business days to provide responsive records. To the extent possible, the Department must provide responsive records on a rolling basis. ' 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 is limited to the rate of $75.00 per hour. Additionally, it is my determination that given the nature of the requested records and the explanation in its petition, the Depaiiment is granted an extension of time to produce records in the manner described above. This office encourages Framingham Reporter and the Depaiiment to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § lO(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Please note, Framingham Repmier 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), lOA(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Framingham Repmier