Olufunmilola Shelly v. Framingham, City of - City Clerk (SPR 20222205)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 13, 2022 SPR22/2205 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 Olufunmilola Shelly 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 September 14, 2022, Ms. Shelly requested numerous emails, videos, and meeting minutes from a named committee. On September 28, 2022, the City responded and provided a fee estimate. Objecting to the fees, Ms. Shelly petitioned this office and this appeal, SPR22/2205, 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 segregation or redaction is required by law or approved by the Supervisor of Records under a 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 SPR22/2205 Page 2 October 13, 2022 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 28th fee estimate In its September 28, 2022, response, the City stated the following: The 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 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. Additionally, the City will need to spend considerable man-hours as required by law in producing these records. The City estimates that it will take 4 hours to produce these records. In accordance with the law, the City will not charge you 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). The City provided a further response on October 6, 2022, explaining the estimate. The City stated the following: The four hours quoted in the estimate provided for this request is time necessary to provide a careful review of all possibly responsive emails for communications covered by the attorney-client privilege recognized in Suffolk Construction v. DCAM, 449 Mass. 444 (2007). A preliminary search of emails returned about 240 emails; estimating only one minute per email (the actual time would likely be higher) necessary to review each email for attorney-client privilege as required by law takes the City to four hours of labor for this particular portion of the request. As the City is statutorily barred from charging for the first two hours of employee time, the fee quoted was $50. In the Town’s responses, it appears the Town is assessing a fee for 4 hours to review and/or redact the requested records. The Town must provide additional information explaining how many hours it is allocating to reviewing and redacting the responsive records. This office encourages the parties to communicate to facilitate producing records more efficiently and affordably. Ms. Shelly may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). See G. L. c. 66, § 10(b)(vii) (an agency or 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 or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the City is ordered to provide Ms. Shelly with a response to the request,

Paul J. Iversen SPR22/2205 Page 3 October 13, 2022 provided in a manner consistent with this order, 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 this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Olufunmilola Shelly