Amy Friedman v. Malden City Clerk's Office (SPR 20200883)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 11, 2020 SPR20/0883 Greg Lucey Malden City Clerk's Office 110 Pleasant Street, First Floor Malden, MA 02148 Dear Mr. Lucey: I have received the petition of Bruce Friedman appealing the response of the City of Malden Public Schools (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on May 14, 2020, Mr. Friedman requested “billing statements, invoices, purchase orders, and contracts, which are not privileged regarding the law firm Murphy, Hesse, Toomey & Lehane, LLP, 300 Crown Colony Drive, Suite 410 P.O. Box 9126 Quincy, MA 02269-9126 from May of 2013 through the date you answer this request.” 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 town 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); (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based …”); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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

Greg Lucey SPR20/0883 Page 2 June 11, 2020 The City's May 29th response In its May 29, 2020 response, the City provided Mr. Friedman with a response including an estimate of $16,150.00 to produce the public records sought. In the response, the City identified approximately 648 pages that are responsive Mr. Friedman’s request. The City explained that redactions will need to be made in accordance with the attorney-client privilege under Exemption (a). Additionally, the City also asserted that such records contain personal identifying information protected under Exemption (c) that will need to be redacted also. The City estimates that it “will take approximately 648 hours to search segregate and redact” the requested records. Unsatisfied with the City’s response, Mr. Friedman petitioned this office and this appeal, SPR20/0883, was opened as a result. Fee estimate Municipalities may not assess a fee for the first 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. 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 (Supervisor) 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). Conclusion Although portions of the responsive records may fall under an exemption to the Public Records Law, it is unclear how a fee estimate of $16,150.00 is reasonable. The fee estimate does not identify the time needed to review each page. Further, it is unclear the number of pages that will need to be reviewed. Accordingly, the City is ordered to provide Mr. Friedman with a revised fee estimate for the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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, Rebecca S. Murray Supervisor of Records cc: Bruce Friedman