Bruce Friedman v. Malden City Clerk's Office (SPR 20202044)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 5, 2020 SPR20/2044 Shirley Dorai Records Access Officer Malden Public Schools 77 Salem Street Malden, Ma 02148 Dear Ms. Dorai: I have received the petition of Bruce Friedman appealing the response of Malden Public Schools (the District) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Friedman requested: (1) “…any and all electronic communications created in, sent to and sent from Mr. Michael Wood's Malden Public Schools electronic mail system including drafts, deleted items and calendar entries… (2) …any and all electronic communications created in, sent to and sent from Ms. Elizabeth Cushinsky's Malden Public Schools electronic mail system including drafts, deleted items and calendar entries… (3) …all materials relating to the conduct of any investigation within the Malden Public Schools, such as witness interviews, reports, and conclusions, specifically excluding any disciplinary outcomes if they exist, which in any way include Mr. Michael Wood, Ms. Elizabeth Cushinsky, and/or the Malden Public Schools Special Education Department from the School year 2017-2018 through the date you respond to this request.” In its October 14, 2020 response, the District provided a fee estimate totaling $175,400 for the production of responsive records, and indicated that such records may be redacted pursuant to Exemptions (a) and (c) of the Public Records Law. Unsatisfied with the District’s fee estimate, Mr. Friedman petitioned this office and this appeal, SPR20/2044, was opened as a result. 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

Shirley Dorai SPR20/2044 Page 2 November 5, 2020 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 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 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 District’s Fee Estimate In its October 14th fee estimate, the District states that it has identified 60,094 emails responsive to the first request, and 20,840 emails responsive to the second. The District states that it does not possess any records responsive to the third request. The District estimates it will require approximately 7,020 hours “to search, segregate and redact” these records. Fees to search for, compile, segregate, redact or reproduce a record request The Regulations provide that in cases where it is necessary to reproduce the requested records, a records access officer (RAO) may charge a fee to search for, compile, segregate, redact or reproduce a record requested based on the hourly rate of the lowest paid employee who is capable of performing the task. G. L. c. 66, § 10(d); see also 950 C.M.R. 32.07(2). Additionally, the reasonable fee for reproduction shall not exceed the actual cost of reproducing the record. Id. In its estimate, the District indicates that the requested records contain information that is subject to redaction pursuant to Exemptions (a) and (c) of the Public Records Law, as well as the common law attorney-client privilege. The District states that the records include “emails

Shirley Dorai SPR20/2044 Page 3 November 5, 2020 between Malden and its attorneys” that “were not shared with the public and were shared in confidence.” The District additionally explains that the records “relate to the educational services and programming that is provided to students, especially special education students,” and asserts therefore that the records “should be deemed exempted from Public Records Law disclosure under Exemption (a) because, as supported by Champa, state and federal student records regulations, specifically, the Family Education Rights Privacy Act and 603 CMR 23.00, compel Malden to protect educational records from disclosure.” The District also asserts that the records “contain personal identifying information of public school students and employees who enjoy mandated confidentiality; indeed, such documents, if released, would reveal the identities, disabilities and information on their educational programming” which is exempt under Exemption (c). Based on the District’s response I find that the District has demonstrated that the requested records are likely to contain information for which redaction is required by law. Accordingly, the District may charge for time spent redacting this information. In its response, the District states that “[i[t will take approximately 7,020 hours to search, segregate and redact all of the records that you have requested.” Despite the District’s response, I find it is unclear how it arrived at the 7,020 hour figure. The District must clarify how much time it expects to spend searching for and segregating responsive records, reviewing for redactions, and producing copies, and how it arrived at this estimate. Compliance with G.L. c. 66, § 10(e) In his appeal petition, Mr. Friedman indicates that he submitted his requests on September 24, 2020, and received the fee estimate from the District on October 14, 2020. The District may not be permitted to charge fees associated with the records request if the District did not provide a response to the request within 10 business days, in compliance with the provisions of the Public Records Law. See G. L. c. 66, §10(e); -se-e -a-ls-o 950 C.M.R. 32.06(2)(c). Based on Mr. Friedman’s petition, it is uncertain whether the District complied with G. L. c. 66, § 10(e) when responding to this request. Therefore, I find the District must demonstrate whether it responded to the records request within ten business days following receipt of the request, in compliance with G. L. c. 66, § 10(e) and 950 C.M.R. 32.06(2)(c). For the reasons discussed above, I find the District must revise its fee estimate or provide further explanation of how the fee assessed in its October 14, 2020 estimate is consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the District is ordered to provide Mr. Friedman with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this

Shirley Dorai SPR20/2044 Page 4 November 5, 2020 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