Olufunmilola Shelly v. Framingham, City of - City Clerk (SPR 20222114)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 28, 2022 SPR22/2114 Paul J. Iversen Records Access Officer City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Iversen: I have received the petition of Olufunmilola Shelly 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 31, 2022, Ms. Shelly requested various categories of records concerning a named individual for specified date ranges. The City responded on September 15, 2022, stating that it was extending the due date, and providing a fee estimate. Unsatisfied with the City’s response, and objecting to the fees, Ms. Shelly appealed, and this case 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 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); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 SPR22/2114 Page 2 September 28, 2022 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 2 (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 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 September 15th Response In its September 15, 2022 response, the City “estimates that it will take approximately 7 hours to produce the email portion alone.” The City goes on to state that it “will not charge [Ms. Shelly] for the first two hours of employee time, at the rate of $25/hour (lower than the hourly wage of the lowest paid employee capable of performing such work).” Further, the City indicates a total fee of $125. Based on the City’s response, it is unclear why the City requires the amount of time indicated above to produce the responsive records. The City must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, please note that in accordance with the Public Records Law, 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 is advised that information that is “required by law” to be segregated or redacted is found in statutes that explicitly indicate that certain records or information are not public records. Some common examples are the student record statute (G. L. c. 71, § 34D), the Criminal Offender Record Information (CORI) Act (G. L. c. 6, § 167), and laws regarding the confidentiality of domestic violence records (G. L. c. 41, § 97D; G. L. c. 41, § 98F; G. L. c. 209A, § 8). These statutes operate through Exemption (a) of the Public Records Law. Segregation or redaction under the

Paul J. Iversen SPR22/2114 Page 3 September 28, 2022 attorney-client privilege is also interpreted to be “required by law.” Accordingly, the City must provide further explanation as to whether any segregation or redaction included in the fee estimate is required by law. For the reasons discussed above, I find the City must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Statutory Timeframe for Providing Records In her appeal petition, Ms. Shelly states that she “also appeal[s] the time extension. Being there is no reason given for why it will take so much time to redact - or any of the other elements - [she is] unsure of the need for extension.” In its September 15th response, the City states that “due to the need to redact as required by law a number of emails, responding to this request within 10 business days places an undue burden on the responsibilities of the City. As a result, the City is extending the due date for this request by 15 business days.” Where the City has indicated that it intends to provide a response within the allowed statutory timeframe, this portion of Ms. Shelly’s appeal is unclear. See G. L. c. 66, § 10(b)(vi) (records access officer shall “identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that ... for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein”). Ms. Shelly is advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). Conclusion Accordingly, the City is ordered to provide Ms. Shelly with a response to her request, provided in a manner consistent with this 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, Manza Arthur Supervisor of Records cc: Olufunmilola Shelly