Amy Friedman v. Malden City Clerk's Office (SPR 20200929)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 25, 2019 SPR 20/0929 Greg Lucey Records Access Officer City of Malden 110 Pleasant Street Malden, MA 02148 Dear Mr. Lucey: I have received the petition of Bruce Friedman appealing the response of the City of Malden (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Friedman requested “all FOIA requests made upon the City of Malden for the calendar year 2020 through the date you respond to this request, and the City’s responses included the date and time requested, and the date and time responded.” The City responded to Mr. Friedman on June 10, 2020, providing a fee estimate for the production of responsive records. Unsatisfied with this fee estimate, Mr. Friedman petitioned this office and this appeal, SPR 20/0929, was opened as a result. Fee Estimates 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 custodian must provide the responsive records. 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 fewer. 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 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

Mr. Greg Lucey SPR20/0929 Page 2 June 25, 2020 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 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The City’s Fee Estimate In its June 10th fee estimate, the City indicates that it estimates that it will require 20 hours to search for and produce responsive records, for a total cost of $500. The City additionally indicates that it estimates it will produce approximately 2000 pages of responsive records. Fees to search for, compile, segregate, redact or reproduce responsive records Although the City indicates that it estimates 20 hours will be required to produce the responsive records, the City does not indicate what tasks it intends to perform, or how it arrived at the 20 hour figure. The City must provide further information regarding this matter. It is additionally unclear whether the City has subtracted the cost of the first two hours, as required by 950 C.M.R. 32.07(2)(m)(1). Employee time The City’s estimate indicates that it is charging $25 per hour for time spent responding to the request. However, the City does not identify which employees it expects to perform the work involved in responding to the request. It is therefore unclear whether the City calculated its estimate using the hourly rate of the lowest-paid employee capable of performing the work. See 950 C.M.R. 32.07(2)(i). The City must clarify this matter. Records format The City indicates that it is charging for the cost for printing responsive records. In his appeal petition, Mr. Friedman indicates that he wishes to receive records in electronic format. Under the Public Records Access Regulations, a records access officer (RAO) must “to the extent feasible, provide public records to a requester in electronic format unless the record is not available in electronic form or the requester does not have the ability to receive or access the records in electronic format and if feasible, in the requester’s preferred format.” 950 C.M.R. 32.04(5)(d). If the City intends to charge for the printing of responsive records, it must explain why it is not feasible to provide records electronically.

Mr. Greg Lucey SPR20/0929 Page 3 June 25, 2020 Conclusion Accordingly, the City is ordered to provide Mr. Friedman with a revised fee estimate for this 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