Brian DeLacey v. Malden City Clerk's Office (SPR 20201965)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 26, 2020 SPR20/1965 Greg Lucey City Clerk City of Malden - Clerk’s Office 110 Pleasant Street Malden, MA 02148 Dear Mr. Lucey: I have received the petition of Brian DeLacey 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, on September 23, 2020, Mr. DeLacey requested “… all email with attachments sent TO or FROM accounts Identified below [s]pecifically, requesting email dated 9/14/20 to the last day prior to your compiling of responsive records for this request excluding any email exchanged with any member of the City Solicitor's Office.” The City responded on October 1, 2020, suggesting Mr. DeLacey provide search terms. On October 1, 2020, Mr. DeLacey modified his request by providing a list of search terms. The City responded on October 13, 2020, providing a response which included a fee estimate. Unsatisfied with the City’s response, Mr. DeLacey petitioned this office, and SPR20/1965 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 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); 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). To meet the specificity requirement a custodian 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 SPR20/1965 Page 2 October 26, 2020 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 ----- custodian must provide the responsive records. Fee Estimate 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 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). The City’s October 13th Fee Estimate In its October 13th fee estimate, the City states “[y]our request will require additional hours above the two hours required by law to answer a Public Records Request. It is estimated by the department responsible in answering the request to be an additional 16 hours above the required two hour limit. The estimated fee is 16 hours at the maximum hourly rate of $25.00 for a total of $400.00.” The City’s fee estimate has not explained with specificity why the indicated amount of time is necessary for producing the requested records. The City's fee estimate lacks confirmation that the provided rate of $25 an hour is of the lowest paid employee who is capable of performing the task(s). Further, the City has not provided sufficient explanation as to why 16 hours is necessary to comply with the records request. Specifically, the City must explain what tasks are necessary to produce the responsive records. The City must clarify these matters.

Greg Lucey SPR20/1965 Page 3 October 26, 2020 Conclusion Accordingly, the City is ordered to provide Mr. DeLacey with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. 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: Brian DeLacey