Ronald Alexander v. Framingham, City of (SPR 20192220)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 15, 2019 SPR19/2220 Todd Palmer Records Access Officer City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Palmer: I have received the petition of Ronald Alexander appealing the response of the City of Framingham (Framingham) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Alexander requested "all emails Sent by Framingham School Committee member ... in the months of June, July, August, September, and October 2019." The City responded on October 23, 2019, providing a fee estimate. Objecting to the fees, Mr. Alexander petitioned this office and this appeal, SPRl 9/2220, 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 pmiicular 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, § lO(d)(iii). Where appropriate, municipalities may include as pmi 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 r·equired 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 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

Todd Palmer SPR19/2220 Page 2 November 15, 2019 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 City's October 23rd cost estimate In its cost estimate, the City indicates that" ... there are approximately 1,276 emails responsive to [the] request." 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 cpmmon law attorney client privilege ..." The City indicated that "[t]the lowest paid employee capable of performing the search is the School's Information Technology employee, David Heistand. The lowest paid employee capable of performing the review [is] Joanna Hastry, the Administrative Assistant to the School Committee." The City indicates that it is extending its time to respond to this request by additional 15 days, because "[t]o search Mr. Epstein's emails and compile a set for review by Ms. Hastry, Mr. 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." Accordingly, the City provides the following cost estimate: "David Heistand, Information Technology ... processing emails for review ... 1,276 [(emails)] ... 6.72 emails per minute= 1.16 hours [at] $25.00, total= $29.00[;] Joanna Hastry ... review emails for responsiveness/redaction of student PII ... 1,276 [(emails)], 15 seconds per email= 5.32 hours [at] $25.00, total= $133.00." Thus, total= $162.00. The City states that this estimate excludes the first two hours. 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 permit charging for 'processing' ... " · The District previously submitted a petition related to the ability to assess fees for time spent searching, segregating and/or redacting responsive records. See SPR19/2174 Determination of the Supervisor of Records (October 30, 2019). Please refer to the determination in SPR19/2174 for analysis of this issue. In its petition, the City stated the following: "[t]he City also seeks permission to charge Mr. Alexander fees in excess of the $25 per hour. Specifica,Uy, the City seeks to charge for Mr. Heistand's hourly rate of $71.87 for the 'retrieval process to search and assemble emails[.] ... '" As such, I found the City may assess a fee for that task. In its current cost estimate, however, the City states that it is assessing a fee for "processing emails for

Todd Palmer SPR19/2220 Page 3 November 15, 2019 review[.]" Based on the foregoing, it is unclear if these tasks are similar. If they are, then I find the City may assess a fee for this task in accordance with the October 30111 determination. If they . are not, I find the School must provide additional information explaining how this task, "processing emails for review[,]" constitutes time to search for, compile, segregate, redact, or reproduce records and how it is chargeable under G. L. c. 66, § 10(d )(iii). Mr. Alexander further claims "[i]n the 10/18 [sic] Fee Estimate, the City states that 'the· emails are not reviewable from the School's archive and are not machine readable without converting them from MBOX files to searchable PDF files.'. This is a ridiculous statement. By definition, email is machine readable and searchable, since it is in 'electronic' format. The City has already shown that the archive is searchable since they have provided the number of emails that match the requested search criteria (1,276). And for it to be searchable in this way, it must already be machine readable so that the email server ( computer) can perform such a search. MBOX files are even more searchable than PDF files, since MBOX files are in the native email server format. ... I will accept MBOX files in response to my request, since they are fully searchable and electronic as required by the Public Records Law." Based on the above, I find the City must clarify whether it is able to provide the records as MBOX files to Mr. Alexander. Mr. Alexander also states "[t]he Fee Estimate also includes an item for Joanna Hastry to 'review emails for responsiveness'. This is unnecessary busy work. My request was for all email 'Sent' by Mr. Epstein. In this case, 'responsive' means that Mr. Epstein's name and/or email address appears in the 'From:' field of the emails. This is a simple email search, and all of the work is performed by the email server (computer). There is no need for Ms. Hastry to 'review' any of these records for 'responsiveness', since by definition the results of the automated email search will produce responsive records. This is unnecessary busy work that the City should not be permitted to charge for." Based on the above statement, it is unclear if Mr. Alexander is objecting to the time, "15 seconds per email [to] review emails for responsiveness/redaction of student PII protected by law." Mr. Alexander must clarify this matter. 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 (10) 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.

Todd Palmer SPR19/2220 Page 4 November 15, 2019 Sincerely, ~ r r ~ Supervisor of Records cc: Ronald Alexander