Susan Petroni v. Framingham, City of (SPR 20201897)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 19, 2020 SPR20/1897 Todd C. Palmer Super Records Access Officer City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Palmer: I have received the petition of Susan Petroni of the Framingham Source appealing the response of the City of Framingham (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Petroni states she requested: “copies of all COVID inspections and citations for COVID violations issued the [H]ealth [D]epartment between April 1 and September 15, 2020.” The City provided an estimate for 6 hours at $25.00 per hour for a total of $150.00. Ms. Petroni sought a detailed breakdown of the estimated hours and hourly rate. Whereas, the City did not provide her with a detailed estimate, Ms. Petroni petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Ms. Petroni asserts that the City did not provide a response that complies with G. L. c. 66, § 10(b), or explain whether the records were available in electronic format or paper. Fees – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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) 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, § 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, 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 SPR20/1897 Page 2 October 19, 2020 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). The City’s fee estimate On September 17, 2020, the City provided Ms. Petroni with an estimate that stated, “[h]ealth Department, 6.00 hours at $25.00 per hour at a total cost of $150.00.” The City also informed Ms. Petroni, “[u]ntil we have received the payment, your request status has been put on hold. We will start the process of creating the response as soon as we receive the payment in full.” The City’s estimate does not have the details/specificity to explain what tasks are being conducted by the City’s employee(s) in the Health Department to account for 6 hours of time at $25.00 per hour. The Regulations provide that in cases where it is necessary to reproduce the requested records a records access officer may charge a fee to search for, compile, segregate, redact or reproduce a record requested based on the hourly rate of the lowest paid employee who is capable of performing the task(s). G. L. c. 66, § 10(d); see also 950 C.M.R. 32.07(2). It is unclear whether the City has assessed the lowest paid hourly rate of the employee who is capable of the performing the tasks necessary to provide Ms. Petroni with the records, and what tasks will be conducted. The City is reminded that the $25.00 hourly rate is the maximum under the statute. The City must clarify these issues regarding the tasks that are necessary to account for 6 hours of time, and confirm the $25.00 per hour rate is the lowest paid employee necessary to conduct the necessary tasks for the request. Additionally, it is unclear whether the City has reduced its fee by two (2) hours of time as required by the Public Records Law. See G. L. c. 66, § 10(d)(iii). The City is also reminded that a municipality may not charge for segregation and redaction unless required by law or a petition has been filed and approved by the Supervisor. G. L. c. 66, § 10(d); see also 950 C.M.R. 32.06(4). The City did not claim any exemptions in its response or estimate, and to the best of my knowledge, I am not aware of the City filing a petition to charge any fees for segregation and/or redaction of the records. Waiver of fees Ms. Petroni requested that the City waive fees because she is a member of the media, and the records or information requested is in the public interest. Please be advised, the Supervisor has no authority to order a records custodian to do so. See G. L. c. 66, § 10(d)(v); see also 950 C.M.R. 32.07(2)(k).

Todd C. Palmer SPR20/1897 Page 3 October 19, 2020 Ms. Petroni contended that the City did not meet its burden of specificity in responding to her request as required by the Public Records Law. The City should clarify whether it responded to the request under the requirements in G. L. c. 66, § 10(b). Conclusion Accordingly, the City is ordered to provide Ms. Petroni with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Susan Petroni, Framingham Source