Frank Wood v. Framingham, City of - City Council Department (SPR 20220536)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 15, 2022 SPR22/0536 Maureen McKeon Records Access officer City of Framingham City Council Department 150 Concord Street Framingham, MA 01702 Dear Ms. McKeon: 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].” Previous appeal This request was the subject of a previous appeal. See SPR21/3116 Determination of the Supervisor of Records (December 13, 2021). In my December 13th determination, I ordered the City to provide additional information regarding its fee estimate. The City provided a response on March 2, 2022. Unsatisfied with the response and objecting to the fees, Mr. Wood petitioned this office and this appeal, SPR22/0536, 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, 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

Maureen McKeon SPR22/0536 Page 2 March 15, 2022 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 $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The City’s March 2nd response In its March 2, 2022 response, the City provided its previous November 29th fee estimate which indicated, “[t]here are approximately 0 documents responsive to your request. Some of those are likely to contain information exempt from disclosure under one or more exemptions in the Public Records Law and will need to be redacted before they can be delivered to you. An exhaustive list of the potential exempt categories is not possible until the documents are reviewed. M.G.L. Chapter 4 Section 7 Clause a-v, Suffolk Construction v. DCAM, 449 Mass. 444 (2007) are just a few areas that may direct our redaction. Accordingly, compiling responses to your request will require a careful review of each document, segregation, and redaction of exempt information” The City provided the following: Person/Department Estimated Time Rate($) 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 In my December 13th determination, I stated the following: 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

Maureen McKeon SPR22/0536 Page 3 March 15, 2022 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. Order Accordingly, where the City has not complied with the December 13, 2021 determination and has not satisfied its statutory and regulatory obligation under the Public Records Law, the City is ordered to provide Mr. Wood with a response to the request, provided in a manner consistent with the December 13th order, the Public Records Law, and its Regulations within ten 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