Brian Petrini-Smith v. Framingham, City of - Mayor's Office (SPR 20211201)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 26, 2021 SPR21/1201 Jennique Horrigan Records Access Officer City of Framingham Office of the Mayor 150 Concord Street Framingham, MA 01702 Dear Ms. Horrigan: I have received the petition of Brian Petrini-Smith 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, on April 21, 2021, Mr. Petrini-Smith requested: all emails sent or received or cc’d to the Mayor and other identified persons containing the terms “Alta Union” or “AUH” between 12/1/2020 and the present. The City’s May 4, 2021 response In a May 4th response, the City’s Legal Counsel, Christopher L. Brown of Petrini & Associates, P.C. indicated, “[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.” In the May 4th response, the City provided a fee estimate for the cost of review and redaction of exempt material within the content of the emails, under the attorney-client privilege. In addition on May 4th, the City filed a petition with the Supervisor of Records (Supervisor) to assess an hourly rate in excess of the $25 maximum allowed by the Public Records Law and its Regulations. See SPR21/1141 Determination of the Supervisor (May 7, 2021). In my May 7th determination on the City’s petition to charge an hourly rate in excess of the $25 per hour, I found that the City met its burden to charge an hourly of $75.00 per hour for the tasks of segregation and redaction of exempt material. 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

Jennique Horrigan SPR21/1201 Page 2 May 26, 2021 Attorney Brown asserts that portions of the records are exempt under the common law attorney-client privilege, and that other exemptions in the Public Records Law may also be determined when the emails are reviewed in more detail than was apparent on initial review. In conclusion, Attorney Brown indicates that based on a careful review and segregation and redaction of exempt information within the emails by legal counsel, the City is extending the time to respond to the request by an additional fifteen (15) business days. On May 12, 2021, Mr. Petrini-Smith petitioned the Supervisor of Records (Supervisor) stating, “[t]his request was put on hold for no reason…no reason was given for this hold.” As a result, this appeal was opened. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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. A review of the City’s FOIA Direct request system details, as provided to this office by Mr. Petrini-Smith reveals that his request was made on April 21st and FOIA Direct set a response date of May 10th. As discussed earlier in this determination, on May 4th, Attorney Brown informed Mr. Petrini-Smith that due to his review and redaction of the emails responsive to the request and subject to the attorney-client privilege, an extension of time by an additional 15 days is necessary. See G. L. c. 66, §10(b)(vi). Under the Public Records Law, if a municipality is unable to furnish a copy of a requested record within ten (10) business days, the municipality must inform the requestor in writing, and identify a reasonable timeframe in which the municipality shall produce the public record. For a municipality, the timeframe shall not exceed twenty-five business days following receipt of the request. See generally G. L. c. 66, § 10(b)(vi). I find that the City has met its burden in responding to Mr. Petrini-Smith’s request, and in providing him with an explanation for the

Jennique Horrigan SPR21/1201 Page 3 May 26, 2021 City’s extension of 15 days to provide the records. Conclusion Where the City intends to provide Mr. Petrini-Smith with the requested records in a timely manner under the Public Records Law, I will consider this administrative appeal closed. A copy of any supplemental 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. Mr. Petrini-Smith may appeal the substantive nature of the response within 90 calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian Petrini-Smith Christopher L. Brown, Esq., Petrini & Associates, P.C.