Framingham Unfiltered v. Framingham, City of (SPR 20221792)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 16, 2022 SPR22/1792 Paul J. Iversen Records Access Officer City of Framingham 150 Concord Street; Room B-37 Framingham, MA 01702 Dear Mr. Iversen: I have received the petition of Framingham Unfiltered appealing the response of the City of Framingham (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 19, 2022, Framingham Unfiltered requested: [1] A list of all police department resignations in 2022, and all letters of resignation and retirement in 2022; [2] A list of all school department resignations in 2022, and all letters of resignation and retirement in 2022; [3] A list of all other department (City wide) resignations in 2022, and all letters of resignation and retirement in 2022; [4] A current list of all employees in the City (Excel document preferred) containing their department, sex, race, pay, handicap status. On August 2, 2022, the City provided a response asserting, “[t]he City intends to provide these records to you insofar as they exist, however due to the need to collect, process, and redact as required by law a number of records, and the number of other records requests…responding to this request within 10 business days places an undue burden on the responsibilities of the City.” In addition, the City estimates that, “…it will take 12 hours to produce these records as required by law (inclusive of all departments). In accordance with the law, the City will work at the rate of $25/hour (lower than the hourly wage of the lowest paid employee capable of performing such work) and not charge for the first two hours of employee time. The City will not complete its response to this request until we have received payment from you of the fee of $250.” 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

Paul J. Iversen SPR22/1792 Page 2 August 16, 2022 As a result of the City’s response pertaining to an extension of time to provide records and the fees, Framingham Unfiltered petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In their August 3rd petition, Framingham Unfiltered indicates, “this is a time and fee appeal.” 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 agency or municipality 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). Fee estimates – 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 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).

Paul J. Iversen SPR22/1792 Page 3 August 16, 2022 The City’s August 2, 2022 fee estimate When preparing a fee estimate for the provision of the requested records the City is advised to provide an explanation to the requestor detailing why this amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The City estimates twelve (12) hours to complete the tasks necessary to produce the records. However, the City’s fee estimate has not broken-down the amount of hours necessary for search, compilation of records, any possible segregation and redaction of exempt material allowed by law, and for any production of the records. The City indicates that it will not charge for the first two (2) hours of employee time; however, it is unclear if the reduction of 2 hours of time has already been subtracted from the total of 12 hours of time assessed by the City. See G. L. c. 66, § 10(d)(iii). The City must clarify how the 12 hours of time is broken-down by tasks, and whether the City has already subtracted the first 2 hours of time from the fee estimate. Further, 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). Based on the City’s response and estimate, it is unclear whether the City is claiming any exemptions for segregation or redaction required by law. It is also unclear to the best of my knowledge whether the City has filed a petition to assess fees for segregation or redaction that is not required by law. Based on the City’s August 2nd estimate, I find that the City must provide further explanation of how the fee assessed in its August 2nd estimate is consistent with G. L. c. 66, § 10(d). This office encourages the parties to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10 (b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Conclusion Accordingly, the City is ordered to provide Framingham Unfiltered with a response to the request in a manner consistent with 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 the response to this office at pre@sec.state.ma.us.

Paul J. Iversen SPR22/1792 Page 4 August 16, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Framingham Unfiltered