SPR Bulletin 03-17

TO: Records Access Officers
SUBJECT: Filing Petitions under the updated Public Records Law
EXPIRATION DATE: Until superseded
PURPOSE: This Bulletin provides guidelines to Records Access Officers to use when submitting petitions to the Supervisor of Records related to public records requests they receive.

BACKGROUND:

Under the updated Public Records Law and Regulations, Records Access Officers (RAOs) may petition the Supervisor of Records (Supervisor) with respect to assessing fees and seeking an extension of time to produce public records. G.L. c. 66, §10(c), (d)(iv); 950 CMR 32.06(4). This Bulletin provides basic information about how to submit such petitions; however, following these instructions does not guarantee the outcome of the Supervisor’s review.

FINDINGS

1. Filing a petition does not affect the requirement that an RAO shall provide an initial response to a requester within ten business days after receipt of a request for public records. G.L. c. 66, §10(b); 950 CMR 32.06(4)(b).

2. RAOs must provide a copy of the petition to the requester. G.L. c. 66, §10(c), (d)(iv)(2).

3. An RAO may request an extension of time from the Supervisor if the agency or municipality needs additional time beyond the statutory timeframes in G.L. c. 66, §10(b)(vi), which are 15 business days for agencies and 25 business days for municipalities, to produce records.

4. A requester may voluntarily agree to a response date beyond the timeframes. If the requester so agrees, the RAO does not need to submit a petition for an extension of time. See G.L. c. 66, §10(b)(vi).

5. If when reviewing a petition for an extension of time the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. G.L. c. 66, §10(c).

6. A fee shall not be assessed for time spent segregating or redacting public 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 CMR 32.06(4).

7. As such, RAOs may petition the Supervisor to charge for time spent segregating or redacting records under G. L. c. 66, § 10(d)(iv). Also, municipal RAOs may submit a petition under G. L. c. 66, § 10(d)(iv) to seek permission to charge more than $25 per hour to comply with a public records request.

ACTIONS:

1. Suggested information to provide for all petitions

a. Provide evidence that requestor was furnished with a copy of the petition (if emailed, demonstrate that requestor is copied).
b. Provide a copy of the request that is the subject of the petition.
c. Provide copies of any responses already provided to requestor.
d. All emailed petitions are to be sent to RAO.Petitions@sec.state.ma.us.

2. Petitions for extension of time or relief of obligation to respond

a. A petition for an extension of time must occur within 20 business days of receipt of request or within 10 business days after receipt of a determination by the Supervisor that the requested record constitutes a public record.
b. RAOs should include as much detail as possible regarding the relief sought; in particular, the petition should address the applicability of the factors described in G.L. c. 66, §10(c).

3. Petitions regarding fees

a. A petition seeking permission to assess fees for time spent segregating or redacting public records, or a petition from a municipality seeking to charge more than $25 per hour, must be made within ten business days after receipt of a request for public records. 950 CMR 32.06(4)(g). b. Please note that only a municipal RAO may petition the Supervisor for permission to charge fees in excess of the maximum hourly rate of $25 per hour for time required to comply with a request. 950 CMR 32.06(4)(h)(2).
c. RAOs should include as much detail as possible regarding the relief sought; in particular, the petition should address the applicability of the factors described in G.L. c. 66, §10(d)(iv).

Questions regarding submitting petitions should be directed to:

Public Records Division
One Ashburton Place, Room 1719
Boston, MA 02108
Phone 617-727-2832
Fax 617-727-5914
Email: RAO.Petitions@sec.state.ma.us
www.sec.state.ma.us/pre