Ronald Alexander v. Framingham, City of (SPR 20192388)

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

Rebecca S, Murray Supervisor of Records

December 4, 2019 SPR19/2388 Christopher L. Brown, Esq. Petrini & Associates, P.C. City of Framingham — City Solicitor 372 Union Avenue Framingham, MA 01702

Dear Attorney Brown:

I have received your petition on behalf of the City of Framingham (City) requesting 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, § 10(c); G. L. c. 66, § 10(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, § 10(c). On November 12, 2019, Ronald Alexander requested “all invoices received by the City of Framingham for legal services provided by the City Solicitor, City Labor Counsel, counsels for Public Schools, counsels for Framingham Police Department, and any other department of the City of Framingham, MA.”

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. SPR19/2388 Page 2 December 4, 2019

G. L. ¢. 66, § 10(c),

If the Supervisor determines 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 request for public records. 950 C.M.R. 36.06(4)(b).

Extension of time to produce responsive records

The City asserts 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 GL. c. 66, s. 10(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 November 12" following his payment of the City’s fee estimate.”

The City explains “{t]he invoices responsive to the request are from four different law

_ firms, totaling approximately 1,900 pages. The invoices contain descriptions of privileged attorney-client communications including entries reflecting questions regarding legal advice received from various City officials and entries reflecting legal advice provided to various City officials. ..{s]ome of the invoices also include personal information of Framingham Public Schools students that is protected from disclosure under exemption (a) of G. L. c. 4, s. 7, cl 26th, as well as FERPA and DESE regulations.”

"| 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, § 10(c)(i)-(ii). I hereby grant the City an extension of 30 business days beyond the time allowed in G. L. c. 66, § 10(b)(vi) (a municipality may provide a timeframe not to exceed 25 business days to produce responsive records). Please note the time may begin to run once the City receives payment. G. L. c. 66, § 10(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, § 10(d)(iii). Where appropriate, municipalities may

Christopher L. Brown, Esq. SPR19/2388 Page 3 December 4, 2019

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 (Supervisor) under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.MLR. 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, § 10(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 invoices responsive to Mr. Alexander’s request, some of which the City is required to redact by law such as the student record information, 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 counsel’s hourly rate of $225 for “reyiew and redaction of potentially exempt records.” The City estimates Counsel will take “approximately 61.33 hours (excluding the first two hours of time) to review and redact approximately 1,900 pages of invoices responsive to Mr. Alexander’s request.” .

Given these records may contain confidential information under FERPA and/or the attorney-client privilege, 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.

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, § 10(d)(iv). In light of the factors in G. L. c. 66, § 10(d)(iv), I find the City may assess a fee limited to $75.00 per hour for

~ Christopher L. Brown, Esq. SPR19/2388 Page 4 December 4, 2019

attorney review. 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.LR. 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, § 10A.

Lebocon

Lebeece S. Murray Supervisor of Records cc: Ronald Alexander

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