SPR Bulletin 03-17

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 10 business days after receipt of a request for public records. G. L. c. 66, § 10(b); 950 CMR 32.06(4)(b). The initial response must be in compliance with G. L. c. 66, § 10(b)(i)-(ix).
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 (a) the magnitude or difficulty of a request, or the receipt of multiple requests from the same requestor, unduly burdens the other responsibilities of the agency or municipality such that an agency or municipality is unable to complete the request within the time provided in clause (vi) of subsection (b), and (b) the agency or municipality needs additional time beyond the statutory timeframes in G. L. c. 6, § 10(b)(vi). G.L. c. 66 § 10(c). A request for an extension of time should address how either the magnitude or difficulty of the particular request involved, or the receipt of multiple other requests by the same requestor, create an undue burden.
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. A fee petition cannot be approved if the RAO has not provided an initial response consistent with G. L. c. 66, § 10(b)(i)-(ix) to the requester within 10 business days. G. L. c. 66, § 10(e).

Actions

1. Suggested information to provide for all petitions from RAOs
   1. Provide evidence that the requester was furnished with a copy of the petition (if emailed, demonstrate that requester is copied)
   2. Provide a copy of the request that is the subject of the petition
   3. Provide information relating to:
      1. the need to search for, collect, segregate or examine records
      2. the scope of redaction required to prevent unlawful disclosure
      3. the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension
      4. efforts undertaken by the agency or municipality in fulfilling the current request and previous requests
      5. whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality and
      6. the public interest served by expeditious disclosure
   4. Provide copies of any responses already provided to requestor in compliance with G. L. c. 66, § 10(b)
   5. 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
   1. 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. G.L. c. 66, § 10(c)
   2. 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. The lack of information regarding the applicability of the factors described in G. L. c. 6, § 10(c)(i) – (vi) as pertaining to the specific request at issue is grounds to deny the petition
3. Petitions regarding fees
   1. 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 10 business days after receipt of a request for public records. 950 CMR 32.06(4)(g)
   2. A fee petition cannot be approved if the RAO has not provided an initial response to a requester that is in compliance with G. L. c. 66, § 10(b). G. L. c. 66, § 10(e)
   3. 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)
   4. 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)
   5. The lack of information regarding the applicability of the factors described in G. L. c. 66, § 10(d)(iv) as pertaining to the specific request at issue is grounds to deny the petition.

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