Brian Petrini-Smith v. Framingham, City of (SPR 20211141)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 7, 2021 SPR21/1141 Christopher L. Brown, Esq. Petrini & Associates, P.C. City of Framingham 372 Union Avenue Framingham, MA 01702 Dear Attorney Brown: I have received your petition on behalf of the City of Framingham (City) seeking a waiver of statutory limits on fees that may be assessed in responding to a public records request. G. L. c. 66, § 10(d)(iv). As required by law, the City furnished a copy of this petition to the requestor. Id. On April 21, 2021, Brian Petrini-Smith submitted a request seeking specified emails. 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 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 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

Christopher L. Brown, Esq. SPR21/1141 Page 2 May 7, 2021 receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Current Petition In its petition to this office dated May 5, 2021, the City explains “[t]he records responsive to this request consist of approximately 150 emails. Based on an initial review of the emails, the emails appear to contain questions regarding legal advice posed by various City officials and legal advice provided to various City officials by the City Solicitor’s Office. Any such communications were sought and given in confidence, and the privilege to such communications has not been waived by the City. Such portions of the records are exempt from disclosure under the common law attorney-client privilege recognized in Suffolk Construction v. DCAM, 449 Mass. 444 (2007). Other exemptions under G.L. c. 4, s. 7(26) may also be determined to apply to the emails when they are reviewed in detail but were not apparent on initial review. Accordingly, compiling responses to this request will require a careful review of and segregation/redaction of exempt information within the emails by counsel.” The City contends that “[g]iven the anticipated exempt information that will be in the emails responsive to Mr. Petrini-Smith, specifically attorney-client privileged communications… and given that only counsel reasonably can make a determination regarding the existence of the attorney-client privilege, and would be doing so at significant cost to the City, the City further petitions to allow the City to charge Mr. Petrini-Smith fees in excess of the $25 per hour statutory maximum rate to respond to his requests.” Further, “[f]or counsel’s review and redaction of potentially exempt records, the City requests that the Supervisor allow the City to charge the rate it will be charged by counsel for such review, $225 per hour. Based on an average review and redaction time of 2 minutes per email, the City estimates approximately 3 hours of time (excluding the first two hours of time) to review and redact the approximately 150 emails responsive to Mr. Petrini-Smith’s request.” Given these records may contain confidential information under attorney-client privilege information, I find the City has met its burden to explain how the request could not prudently be completed without redaction or segregation or by assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Therefore, the City may assess a fee for the time spent to segregate and redact the requested records. However, this allowance is limited to $75.00 per hour. Conclusion Accordingly, I find the City has met its burden to explain how the response could not be prudently completed without segregation or redaction. 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. Petrini-Smith within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Petrini-Smith may appeal the City’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note the requestor has the right to seek judicial review of this decision by

Christopher L. Brown, Esq. SPR21/1141 Page 3 May 7, 2021 commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10A. Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian Petrini-Smith Todd Palmer