Brian Petrini-Smith v. Framingham, City of - City Clerk (SPR 20212276)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 13, 2021 SPR21/2276 Mr. Todd Palmer City of Framingham City Clerk 150 Concord Street Framingham, MA 01702 Dear Mr. Palmer: I have received your petition on behalf of the City of Framingham City Clerk (City) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the City furnished a copy of this petition to the requestor, Mr. Brian Petrini-Smith. Id. In a letter dated August 23, 2021, Mr. Petrini-Smith requested a variety of documents related to a specified Officer, including “the IA file… documents of complaints… anonymous letters about [the Officer]… any notes/email/documents [related to investigations of the Officer]… [and] any HR or IA files for [the Officer] regarding harassment [sic] of women.” Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from a municipality 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 municipality 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 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

Mr. Todd Palmer SPR21/2276 Page 2 September 10, 2021 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 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) 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) Current Petition The September 7, 2021 petition states that the City “petitions to allow the City to charge Mr. Petrini-Smith fees for the time spent redacting the records prior to production.” The City explains that “[t]he records responsive to this request consist of approximately 140 pages across several documents,” and that “based on an initial review of the records, they appear to contain information regarding specific individuals, the disclosure of which could constitute an unwarranted invasion of privacy, and which therefore may be exempt from disclosure pursuant to exemption (c) of the Public Records Law.” Additionally, the City notes that “[t]he records also contain witness identifying information which may be exempt from disclosure pursuant to exemption (f) of the Public Records Law,” and that “there is personal identifying data such as home addresses, phone numbers, and drivers license numbers which may be exempt from disclosure under exemption (a) and Chapter 93H.” The City explains that “[g]iven the anticipated exempt information that will be in the records responsive to Mr. Petrini-Smith,” the City will “require substantial redaction prior to production consuming significant staff time.” The City states that they estimate “that it will take approximately 2.5 hours to complete all of the needed redactions, in addition to the time to

Mr. Todd Palmer SPR21/2276 Page 3 September 10, 2021 search for and gather the responsive records in the first place, which was completed within the 2 hours during which the City does not charge a requester based on Framingham’s population under the Public Records Law.” Conclusion Given the public interest served by limiting the cost of public access to the requested records, I am unable to grant permission to charge for time spent segregating or redacting responsive records or to charge in excess of $25 an hour. Please note, this does not preclude the City from charging for segregation and redaction that is required by law at $25.00 per hour. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. Brian Petrini-Smith