Brian Petrini-Smith v. Framingham, Town of - City Solicitor (SPR 20211247)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 26, 2021 SPR21/1247 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 May 6, 2021, Brian Petrini-Smith submitted a request seeking identified communications dated between 12/1/2020 and the present. Petitions to Assess Fees 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 (Supervisor) 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). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the 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. SPR21/1247 Page 2 May 26, 2021 redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates 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, 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) 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 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 19, 2021, the City explains “[t]he records responsive to this request consist of approximately 364 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

Christopher L. Brown, Esq. SPR21/1247 Page 3 May 26, 2021 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 7.1 hours of time (excluding the first two hours of time) to review and redact the approximately 364 emails responsive to Mr. Petrini-Smith’s request.” I find the City has met its burden to assess a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). However, this allowance is limited to $75.00 per hour. Conclusion 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 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