Frank Wood v. Framingham, City of - City Clerk (SPR 20213116)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 13, 2021 SPR21/3116 Todd Palmer City Clerk City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Palmer: I have received the petition of Frank Wood 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 November 12, 2021, Mr. Wood requested “. . . all emails sent by [8 identified email addresses] to any individual city councilor, or to the full council from 6/3/2021 to present, [and] . . . any email sent by a city councilor to any of the [8 identified email addresses].” The City provided a response on November 29, 2021, including a fee estimate. Objecting to the fees, Mr. Wood petitioned this office and this appeal, SPR21/3116, was opened as a result. Fee estimate – municipalities 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 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 SPR21/3116 Page 2 December 13, 2021 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). The City’s November 29th fee estimate In its November 29, 2021 fee estimate, the City states “[t]here are approximately 0 documents responsive to your 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 to you. An exhaustive list of the potential exempt categories is not possible until the documents are reviewed. M.G.L. Chapter 4 Section 7 Clause a-v, Suffolk Construction v. DCAM, 449 Mass. 444 (2007) are just a few areas that may direct our redaction. Accordingly, compiling responses to your request will require a careful review of each document, segregation, and redaction of exempt information” The City provides the following: Person/Department Estimated Time Rate($) Total($) Explanations Responsive Estimate in (if any) Documents hours to Acquire Documents Maureen 0 4.00 $25.00 $100 $50 due to McKeon/City first two Council hours free Based on the City’s response, indicating “[t]here are approximately 0 documents responsive to your request[,]” it is unclear how the City calculated its fee estimate and arrived at an estimate of 4 hours. It is also not clear from the City’s response the records it intends to compile, review, segregate, and redact. It is additionally uncertain how many hours the City is allocating to each of these tasks. The City must clarify these matters. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, the City states “M.G.L. Chapter 4 Section 7 Clause a-v, Suffolk Construction v. DCAM, 449 Mass. 444 (2007) are just a few areas that may direct our redaction.” Based on the City’s response, it is unclear if it is assessing a fee for segregation and/or redaction of records not required by law. A municipality may not charge for segregation and redaction unless required by law or a petition has been filed and approved by the Supervisor of Records. G. L. c. 66, § 10(d); see also 950 C.M.R. 32.06(4). The City must clarify this matter. Conclusion Accordingly, the City is ordered to provide Mr. Wood with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations

Todd Palmer SPR21/3116 Page 3 December 13, 2021 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: Frank Wood