TK421 Framingham Forward v. Framingham, City of (SPR 20210892)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 14, 2021 SPR21/0892 Blake D. Lukas City of Framingham Department of Public Works 100 Western Avenue Framingham, MA 01702 Dear Mr. Lukas: I have received your petition on behalf of the City of Framingham Department of Public Works (Department) requesting permission to charge for time spent segregating or redacting responsive records as well as charging in excess of the statutory fees. G. L. c. 66, § 10 (d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor, TK 421. Id. In a letter dated April 1, 2021, TK 421 requested, “…all emails sent and received by Dan Nau between 5/5/2020 and 5/15/2020 (inclusive of dates)…and all emails sent and received by Blake Lukis between 5/5/2020 and 5/15/2020 (inclusive of dates).” Petitions to Assess Fees – Municipality 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 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

Blake D. Lukis SPR21/0892 Page 2 April 14, 2021 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 petition dated April 7, 2021, the Department asserts that “[b]etween Mr. Nau and Mr. Lukis, there are approximately 2,000 emails that are responsive to this request. Based on a preliminary review, some of the emails contain information that is exempt from disclosure under one or more exemptions in the Public Records Law.” The Department further states, “…based on a sampling of the responsive emails we anticipate that the emails may contain personnel and medical related information protected from disclosure under exemption (c), statutory exemptions under exemption (a), and policy deliberation under exemption (d) of the Public Records Law.” With respect to fees, the Department requests “…that the Supervisor allow the City to charge the rate it compensates the sole custodian of the records, Mr. Blake Lukis, at $73.37 per hour.” In the April 7th petition, you state, “I am the owner and custodian of my own email account and, since Mr. Nau is no longer an employee of the City of Framingham, as his immediate supervisor, I am the custodian of his emails as well, and the lowest paid City employee who can review the emails responsive to this request.” Although the Department contends that “…some of the emails contain information that is exempt from disclosure under one or more exemptions in the Public Records Law,” it has not provided information regarding what records it intends to produce and why such records are likely to contain exempt information. Conclusion I find the Department has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Please note, however, this does not preclude the Department from charging for segregation and redaction that is required by law. Further, I find the Department may assess an hourly rate of no more than $73.37. When preparing a fee estimate for the provision of the requested records, the Department is 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 Department must provide a response to TK 421 within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). TK 421 may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1).

Blake D. Lukis SPR21/0892 Page 3 April 14, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: TK 421