Framingham Reporter v. Attorney General's Office (SPR 20210627)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 29, 2021 SPR21/0627 Lorraine A.G. Tarrow, Esq. Assistant Attorney General Attorney General's Office One Ashburton Place Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Framingham Reporter appealing the response of the Attorney General's Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 7, 2021, Framingham Reporter requested “… all written or electronic communications with any board, committee, employee, counsel, or any other entity associated with the Town of Natick, MA from January 1, 2020 to the date of the request, January 7, 2020 including but not limited to: - Any electronic mail sent to or received from any email address in the natickma.org, natickpolice.com, or natickps.org email domains, and any attachments or other documents sent to or received from those email domains. - Any written correspondence sent to or received from any entity of the Town of Natick, MA as listed above.” Previous Appeal This request has been the subject of a previous appeal. See SPR21/0309 Determination of the Supervisor of Records (February 22, 2021). In my February 22nd determination, I found the Office intended to provide Framingham Reporter with a response to their request. The Office provided said response on February 23, 2021, requesting that Framingham Reporter seek clarification of the scope of the request. On February 24, 2021, Framingham Reporter clarified the scope of the request. On March 10, 2021, the Office provided a fee estimate for the response to the request. Unsatisfied with the Office’s response, Framingham Reporter petitioned this office and this appeal, SPR21/0627 was opened as a result. 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

Lorraine A.G. Tarrow, Esq. SPR21/0627 Page 2 March 29, 2021 Fee Estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records ----- custodian must provide the responsive records. An agency 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). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies 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. 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)(ii); 950 C.M.R. 32.06(4). 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Current Appeal In the current appeal, Framingham Reporter asserts, “[o]n March 10, 2021, the RAO finally sent an untimely response with a fee estimate. Please note that this response was two (2) days past the ‘ten business days’ deadline that the Supervisor ordered in SPR21/0309.” The appeal further states “[t]he RAO did not respond to my January 7, 2021 request within ten (10) business days as required by the Public Records Law. The RAO did not respond to the Supervisor's order in SPR21/0309 within the specified ‘ten business days’ deadline. There is no record of the RAO filing a Time Petition nor a Fee Petition with the Supervisor at any time. The Guide to the Massachusetts Public Records Law states: ‘a fee for a public record may not be charged unless the RAO responded to the requestor within 10 business days under G. L. c. 66, § 10(b).’” G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Framingham Reporter submitted the request on January 7, 2021.

Lorraine A.G. Tarrow, Esq. SPR21/0627 Page 3 March 29, 2021 Where the Office provided a response via email requesting clarification of the request on January 21, 2021, the 9th business day, I find the Office complied with G. L. c. 66, § 10(b). Please be advised that January 18, 2021 was a holiday and not considered a business day. Further, on February 24, 2021, Framingham Reporter provided clarification of the request. Where the Office provided a response on March 10, 2021, I find the Office complied with G. L. c. 66, § 10(e). Reasonableness of fee estimate In its March 10th response, the Office included a fee estimate totaling $2,062.25. The Office explains: “…the labor required to search for, identify, and review these records for responsiveness and certain information protected by law amounts to eighty-six and one half (86.5) hours. This estimate accounts for: three and one quarter (3.25) hours already expended by staff to search for and identify potentially responsive records; fifty (50.0) hours for qualified staff to review the records for responsiveness and, as necessary, redact protected information or otherwise initially segregate the records; and thirty-three and one quarter (33.25) hours for an attorney to then review and further segregate the records, all at the rate of $25.00 per hour. However, G.L. c. 66 § 10(d)(ii)(B) provides that no fees shall be charged for the first four (4.0) hours of labor required to respond to a public records request. Therefore, the total amount of chargeable labor to respond to your modified request is eighty-two and one half (82.5) hours at the rate of $25.00 per hour, which amounts to $2,062.50.” Based upon a conversation between a staff member of the Public Records Division and an Office representative, it is my understanding that the Office intends on providing a supplemental response to Framingham Reporter regarding its fee estimate. Conclusion Accordingly, I will consider this appeal closed. 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: Framingham Reporter