Louisa M. Moller v. Framingham, City of - Police Department (SPR 20201284)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 7, 2020 SPR20/1284 Todd C. Palmer Super Records Access Officer City of Framingham 150 Concord Street Framingham, MA 01702 Dear Todd Palmer: I have received your petition on behalf of the City of Framingham (City) seeking permission to charge $51.57 per hour in responding to a request made by Louisa Moller. G. L. 66, § 10(d)(iv). As required by law, it is my understanding that the City furnished a copy of this petition to the requestor. Id. In a letter dated July 31, 2020, Ms. Moller requested two categories of records concerning the Framingham Police Department. Petitions 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, § 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, § 10(d)(iv). 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, § 10(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 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 C. Palmer SPR20/1284 Page 2 August 7, 2020 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, § 10(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, § 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 petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(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 July 31st petition, the City seeks “to increase the normal rate of pay of $25.00 per hour to $51.57 per hour to complete this request.” The City posits “Lt. Patricia Grigas is the lowest paid employee who can perform the request and her rate of pay is $51.57 per hour.” Conclusion It is unclear how the request could not be prudently completed without a fee in excess of $25.00 per hour. Specifically, it is uncertain why this task cannot be completed by a lower paid employee. Consequently, the City has not met its burden to demonstrate why it must charge in excess of the statutory limit of $25.00 per hour in responding to a request made by Ms. Moller. When preparing a fee estimate for the provision of the requested records, the City is

Todd C. Palmer SPR20/1284 Page 3 August 7, 2020 advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The City must provide a response to Ms. Moller within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4) Sincerely, Rebecca S. Murray Supervisor of Records cc: Louisa Moller