Olufunmilola Shelly v. Framingham, City of (SPR 20211282)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 27, 2021 SPR21/1281; SPR21/1282 Christopher L. Brown, Esq. Petrini & Associates, P.C. 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 the requests. G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the City furnished a copy of this petition to the requestors. G. L. c. 66, § 10(c). On May 11, 2021, Frank Wood and Olufunmilola Shelly submitted two requests “[s]eeking invoices sent by Petrini & Associates, Chris Brown, Chris Petrini, or any individuals within Petrini & Associates, or by any other law firm, or individual attorneys, as received by the CITY. [sic] for services performed between...” specified dates. Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from an agency to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the agency to comply with the request. G. L. c. 66, § 10(d)(iv). 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 or to charge in excess of $25 an hour for the provision of public 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 the request is not for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by 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. SPR21/1281; SPR21/1282 Page 2 May 27, 2021 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 redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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 receipt of a request for public records. 950 C.M.R. 32.06( 4)(g). In its May 21, 2021 petition, the City “requests that it be allowed to charge for the time that will be spent segregating and redacting the records prior to making them available to the requesters pursuant 950 CMR 32.06(4)(h)…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 the requesters fees in excess of the $25 per hour statutory maximum rate to respond to his requests...for 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.” The City indicates “[b]ased on an average review and redaction time of 2 minutes per page, the City estimates approximately 1.47 hours of time (excluding the first 24 minutes of time pursuant to G.L. c. 66, s. 10(d)(iii) and time spent by City responding to Public Records Request No. 202 1-0763) to review and redact the approximately 56 pages of invoices responsive to the requests.” The City further indicates “…the records responsive to this request consist of 26 pages from Petrini & Associates monthly invoices for February 2021 and 30 pages from the

Christopher L. Brown, Esq. SPR21/1281; SPR21/1282 Page 3 May 27, 2021 firm’s March 2021 monthly invoices.” The City explains “[t]he pages contain detailed descriptions not just of the time spent by each attorney working on matter but of privileged attorney-client communications including entries reflecting questions regarding legal advice received from various City officials and entries reflecting legal advice provided to various City officials. The legal advice reflected in the entries was sought and given in confidence, and the privilege to such advice 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). Accordingly, compiling responses to these two requests will require a careful review of each invoice and segregation/redaction of exempt information within the invoices by counsel.” 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 redaction or segregation. To the extent the responsive records contain the exempt information as described above, the City may assess a fee for segregation and redaction. Additionally, the City may assess an hourly fee in excess of $25.00. However, this fee is limited to $75 per hour. The City must provide an updated fee estimate to the requestors within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). The requestors may appeal the City’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, the requestors have 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: Frank Wood Olufunmilola Shelly Todd Palmer