Frank Wood v. Framingham, City of - Public Schools Department (SPR 20213229)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 16, 2021 SPR21/3229 Amy Kane Department RAO School Department City of Framingham 150 Concord Street Framingham, MA 01702 Dear Ms. Kane: I have received the petition of Frank Wood appealing the response of the Framingham School Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 2, 2021, Mr. Wood requested, “… all emails from October 1 2021 to present sent or received by [named persons] … that mention the word MCAD [and] all emails between [named persons] between October 1 2021 and present.” The Department responded on December 2, 2021. Unsatisfied with the Department’s response, Mr. Wood petitioned this office and this appeal, SPR21/3229, was opened as a result. 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 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

Amy Kane SPR21/3229 Page 2 December 16, 2021 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 Department’s December 2nd Fee Estimate In its December 2nd response, the Department provided a fee estimate of $80.83, detailed as follows: 20 minutes of search time 4.9 hours to segregate and redact Less 2 hours for first two hours of employee time. The Department further asserted that there are 147 emails that “… may require the District to seek legal advice with regards to information potentially protected by the attorney- client privilege or otherwise subject to exemption from the public records law.” Although the Department explained that redactions are necessary based upon attorney client privilege, it is unclear whether the Department is charging for exemptions that are not required by law. See G. L. c. 66, § l0(d)(iii) (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)). The Department’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). For the reasons discussed above, the Department must revise its fee estimate or provide further explanation of how the $80.83 fee assessed in its estimate is consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Department 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 within 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.

Amy Kane SPR21/3229 Page 3 December 16, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Frank Wood

Amy Kane SPR21/3229 Page 4 December 16, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc Stanley Mazurczyk