Brian Petrini-Smith v. Framingham, City of (SPR 20222819)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 21, 2022 SPR22/2819 Paul J. Iversen Records Access Officer City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Iversen: I have received the petition of Brian Petrini-Smith 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 28, 2022, Mr. Petrini-Smith requested three categories of accident reports, involving ‘NRT’ busses, city owned vehicles, and police or fire vehicles. The City responded on December 8, 2022, providing a fee estimate. Objecting to the fees, Mr. Petrini- Smith 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 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 SPR22/2819 Page 2 December 21, 2022 custodian must provide the responsive records. 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 December 8th Fee Estimate In its December 8, 2022 response, the City provides a fee estimate for a total of $56.25. In support of its fee estimate, the City states that “there are approximately 17 documents responsive to [the] 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.” The City also provides a table indicating a “time estimate in hours to acquire documents” of 2.25 hours, and a rate of $25 per hour. The City further states that “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 [the] redaction.” In an email to this office and Mr. Petrini-Smith on December 9, 2022, the City further elaborates that the RAO “searched [the] records management system and identified the reports related to the request, this task took approximately 30 minutes. The 17 reports would need to be reviewed and prepared for release.” The City “estimate[s] the time period to process the 17 reports would be 15 minutes per report for a total time of 4.25 hours.” The City also indicates that it is not charging for the first two hours of work, nor for 30 minutes of work “already performed for this request.” Based on the City’s response, it is unclear why the City requires 15 minutes to review each responsive record. The City must provide further details regarding the contents of the

Paul J. Iversen SPR22/2819 Page 3 December 21, 2022 records and why it would take 15 minutes to review each one. Additionally, as noted above, 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). Please note 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. These statutes operate through Exemption (a) of the Public Records Law. Segregation or redaction under the attorney-client privilege is also “required by law.” Accordingly, the City must clarify whether the redactions described in the fee estimate are required by law. Conclusion Accordingly, the City is ordered to provide Mr. Petrini-Smith with a response to his 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Brian Petrini-Smith Lt. Robert W. Sibilio