Ronald Alexander v. Framingham, Town of - City Solicitor (SPR 20192143)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 25, 2019 SPR19/2143 Christopher L. Brown, Esq. Petrini & Associates, P.C. City of Framingham - City Solicitor 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 October 3, 2019, Ronald Alexander requested "all email[s] sent by Administrative Assistant Joanna Hastry in the months of June, July, August, and September 2019." 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 (vi) the public interest served by expeditious disclosure. 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. SPR19/2143 Page 2 October 25, 2019 G. L. c. 66, § lO(c). If the Supervisor dete1mines 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) shall provide an initial response to a requestor within ten business days after receipt of a requestfor 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 October 3, 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. 10( c )(vi). The City requests that based on such determination, that the Supervisor either fmiher 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 supp01i 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 either 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." Based on the information provided in the October 1 gth petition, I find that the City has not met its burden to demonstrate the requests, which relate to emails of a public employee, are frivolous and not intended for the broad dissemination of information to the public about actual or alleged government activity, as required by G. L. c. 66, § lO(c). Extension of time to produce responsive records The City asse1is 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 October 3, 2019 following his payment of the City's fee estimate."

Christopher L. Brown, Esq. SPR19/2143 Page 3 October 25, 2019 The City explains "[t]he emails responsive to this request by Mr. Alexander total approximately 5,454. As the Administrative Assistant to the School Committee, Ms. Hastry communicates r.egularly with high level officials in the Framingham Public School. Many of the emails responsive to Mr. Alexander's request are anticipated to contain one or more categories of records that are exempt from disclosure under G.L. c. 4, s. 7, cl. 26111 ... we anticipate the emails may contain personal information protected from disclosure under exemption ( c ), inter- and intra-agency emails related to policy positions being developed by the Framingham Public Schools protected from disclosure 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 from disclosure under the common law attorney client privilege .. " The City further explains "Ms. Hastry, the School's Information Technology employee, David Heistand, will need to spend considerable time as the emails are not reviewable from the School's.archive and are not machine readable without conve1iing them from MBOX files to searchable PDF files .. He and Ms. Hastry, as the Committee's lone assistant, are already occupied with the day-to-day business of the School Depaiiment and their respective positions, including responding to several other public records requests that Mr. Alexander has submitted in the past couple of weeks ... the School's legal counsel is engaged on a number of matters and cannot focus solely on the task ofresponding to Mr. Alexander's many public records requests, let alone this present overbroad request." I find that in light of the need to segregate or examine records, the scope of redaction required to prevent unlawful disclosure, and the efforts undertaken by the City in fulfilling the previous requests, the City has established good cause to permit an extension of time. G. L. c. 66, § lO(c)(i)-(ii). I hereby grant the City an extension of 30 business days beyond the time allowed in G. L. c. 66, § lO(b)(vi) (a municipality may provide a timeframe not to exceed 25 business days to produce responsive records). Please note the extension may begin to run once the City receives payment. G. L. c. 66, § lO(c) (the Supervisor may grant a single extension to a municipality not to exceed 30 business days). 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, § lO(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

Christopher L. Brown, Esq. SPR19/2143 Page4 October 25, 2019 (Supervisor) 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). 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 explains "[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 $71.87 for the "retrieval process to search and assemble emails," Ms. Hastry's hourly rate of $34.29 for review ·"for potentially exempt information under exemption (a)," as well as counsel's hourly rate of $225 for "review and redaction of potentially exempt records." The City estimates Mr. Carpenter's search time "will take approximately 11.53 hours," Ms. Hastry's review "will take approximately 22.725 hours," and Counsel will take "approximately 5 hours of time to review." Given these records may contain confidential information under FERP A and/or attorney client privilege information, I find the City has met its burden to explain how the request could not prudently be completed without redaction or segregation or by assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d )(iv). Therefore, the City may assess a fee for the time spent to segregate and redact the requested records. However, the City has not demonstrated the need for approximately 39 hours to produce the records. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). Further, I find the City has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction, segregation or by assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § lO(d)(iv). In light oftHe factors in G. L. c. 66, § lO(d)(iv), I find the City may assess a fee limited to $75.00 per hour for attorney review as well as Mr. Carpenter's hourly rate of $71.87 and Ms. Hastry's hourly rate of $34.29 for the detailed tasks. G. L. c. 66, § lO(d)(iii).

Christopher L. Brown, Esq. SPR19/2143 Page 5 October 25, 2019 Conclusion When preparing a fee estimate for the provision of the requested records, the City must reduce the amount of time charged for producing the records, or provide more detail explaining why this amount of time is necessary. Mr. Alexander may appeal the City's fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note the requestor 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, § 1O A. Sincerely, ~.~ Supervisor of Records cc: Ronald Alexander