FU Spotlight Team v. Framingham, City of - City Clerk (SPR 20212362)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 22, 2021 SPR21/2362 Todd Palmer Super RAO City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Palmer: I have received the petition of the FU Spotlight Team 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). On August 5, 2021, the requestor sought, “… all emails sent or received by any Records Access Officer, or person acting as a Records access officer, or the Super Records Access officer, where a receipt or sender has a email address ending in @sec.state.ma.us or @state.ma.us” between the dates of 4/1/2021 and 8/5/2021. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR21/2362 was opened as a result. 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); 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). 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

Todd Palmer SPR21/2362 Page 2 September 22, 2021 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, compile, segregate, redact or reproduce records requested unless the municipality has a population of 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 requested record. However, the fee shall not be more than $25 per hour. Id. A municipality shall not charge a fee for a public record unless the records access officer responded to the requestor within ten business days from the date of the initial request. G. L. c. 66, § 10(e). 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). The City’s September 16, 2021 Fee Estimate In its September 16th response, the City provided a fee estimate of $74.25. The City asserted that, “[t]here are approximately 3700 documents responsive to [the] request. Some of those are likely to contain information exempt from disclosure under one or more exemptions in the public records law and will need to be redacted before they can be delivered.” The fee estimate summary is as follows: Total estimated response cost: $124.25 minus 2 free hours (2 hours $15.00/Hr = $50.00) $124.25 - $50.00 = $74.25 Although the City estimates that preparing responsive documents for production will cost $74.25, it is unclear how the City arrived at this amount. As such, the City must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Please note that under the Public Records Law, a fee may 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)(ii); 950 C.M.R. 32.06(4). The City must clarify that redaction is required by law in this matter. Further, I am not aware that the City has submitted a petition under G. L. c. 66, §

Todd Palmer SPR21/2362 Page 3 September 22, 2021 10(d)(iv). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. See 950 C.M.R. 32.06(4)(g). Further, the City’s fee estimate lacks confirmation that the rate of $25 per hour is of the lowest paid employee who is capable of performing the task(s). Additionally, it is also not clear how many minutes per page the City requires to review the responsive records. The City must clarify these issues. For the reasons discussed above, I find the City must revise its fee estimate or provide further explanation of how the assessed fee is expressly provided for and consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the City is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: FU Spotlight Team