Keith Goldstein v. Framingham, City of - Public Schools Department (SPR 20200505)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 11, 2020 SP.R20/0505 Amy Kane Framingham Public Schools 73 Mt. Wayte Avenue, Suite #5 Framingham, MA 01702 Dear Ms. Kane: I have received your petition on behalf of the City of Framingham (City) requesting an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10( c ); G. L. c. 66, § 10( d)(iv). As required by law, the City furnished a copy of this petition to the requestor. G. L. c. 66, § lO(c). On February 24, 2020, Keith Goldstein requested "settlement agreements entered into the City of Framingham for years 2017, 2018, 2019 and to date for 2020." 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. G. L. c. 66, § lO(c). 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 SPR20/0505 Page 2 March 11, 2020 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 activhy, 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 oft ime to produce responsive records In its March 9, 2020 petition, the City requests "relief releative to the ... request." The City estimates that there are "approximately 56 agreements, totaling approximately 398 pages." Further, the City asserts "many of the agreements contain information that is exempt from disclosure under one or more exemptions in the Public Records Law and will need to be redacted." Additionaly, the City "anticipate[s] that the agreements may contain personnel information protected from disclosure under exemption ( c ), personal information related to the students protected under exemption (a), the Family Educational Rights and Privacy Act (FERPA)." I find that in light of the need to collect and segregate the request, as well as redacting to prevent unlawful disclosure, 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 time may begin to run once the City receives payment. G. L. c. 66, § lO(c). Petition to Assess Fees 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, § lO(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, § 10( d)(iv).

Amy Kane SPR20/0505 Page 3 March 11, 2020 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, § 10( 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(tl)(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). In its March 9111 petition, the City requests "that the Supervisor allow the City to charge the rate it will be charged by counsel for such review [at] $225 per hour." In addition to Exemption (a), (FERP A), the City indicates such readactions include "home address information for public employees which is prohibited from disclosure under exemption (c) and (o) of the Public Records Law."

Amy Kane SPR20/0505 Page4 March 11, 2020 With respect to the hourly attorney rate of $225. 00 per hour, you explain that this is the hourly rate required because it is the rate that the City is charged by its attorneys. It should be noted that the Public Records Regulations require that the person with the lowest hourly rate capable of compiling, segregating, and redacting the requested records preform the redaction. With respect to the City's petition to assess fees, I find the City may assess a fee for the time spent to compile, segregate, and redact the requested records. However, this allowance is limited to $75.00 per hour. Conclusion Accordingly, I find the City has established good cause for a time extension of 30 business days as described above. Further, in light of the City's petition, I find the City has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the City may assess a fee for segregation and redaction. The City must provide an updated fee estimate to Mr. Goldstein within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Goldstein may appeal the City's fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Mr. Goldstein 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: Keith Goldstein