Amy Friedman v. Malden City Clerk's Office (SPR 20202447)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 22, 2020 SPR20/2447 Greg Lucey City Clerk City of Malden 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 (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on September 3, 2020, Mr. Freidman requested “. . . all documentation regarding and resulting from the special education audit of services delivered and not delivered to all special education students in 2019-2020 as so ordered by the Malden School Committee at the regular meeting of June 22, 2020 which was due September 1, 2020. This request includes but is not limited to the audit itself, minutes, emails, videos, recordings and documents of any nature.” Previous appeals The requested records were the subject of previous appeals. See SPR20/1749 Determination of the Supervisor of Records (September 24, 2020) and SPR20/1798 Determination of the Supervisor of Records (October 8, 2020). In my October 8th determination, I directed the City to clarify whether it possesses records responsive to the request. Subsequent to this determination, Mr. Friedman made an identical request on October 22, 2020, which was the subject of a previous appeal. See SPR20/2159 Determination of the Supervisor of Records (November 23, 2020). Where the requests regarding SPR20/1798 and SPR20/2159 were similar, the City provided a supplemental response to both requests on November 17, 2020 and December 9, 2020. The City’s December 9th request, included a fee estimate. Objecting to the fees, Mr. Friedman petitioned this office and this appeal, SPR20/2447, was opened as a result. Fee estimate – municipalities 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 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 SPR20/2447 Page 2 December 22, 2020 ($.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 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). G. L. c. 66, § 10(e) In his appeal petition Mr. Friedman states the following: “[o]n September 3, 2020, the following plainly-worded, verbatim FOIA request [above] was served on the City of Malden via the Official City of Malden FOIA website[.] . . . The RAO had until the COB on September 19, 2020 to respond per G. L. c. 66, § 10(b), G. L. c. 66, §10(e) and/or 950 C.M.R. 32.06(2)(c). [The City] failed to do so and as a result is time barred from charging any fees for [its] response to the request under SPR 2020-1798. . . .” G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Mr. Friedman submitted a public records request on September 3rd and the City provided an initial response on September 23rd, I find it is unclear whether the City complied with G. L. c. 66, § 10(e). Specifically, the City must demonstrate whether it provided a response to Mr. Friedman’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request. Reasonableness of fee estimate In the event that the City can demonstrate that it complied with G. L. c. 66, § 10(e), it is necessary to analyze the reasonableness of the fee estimate. In the City’s December 9th response, it explains that it did a “search of the term ‘special education audit,’ in its email system since May 1, 2020. The search revealed 1,979 emails that include the term ‘special education audit.’” The City further explains that “[t]hese emails are subject to an exemption and would need to be reviewed and segregated. . . . Like the agreement at issue in Champa, emails on a special education audit contain personal identifying information of public school students and employees who enjoy mandated confidentiality; indeed, such

Greg Lucey SPR20/2447 Page 3 December 22, 2020 documents, if released, would reveal the identities, disabilities and information on their educational programming. As a result, these emails should be deemed exempted from Public Records Law disclosure under Exemption (a) because, as supported by Champa, state and federal regulations compel Malden to protect educational records from disclosure.” Based on the foregoing the City provided the following estimate: Search time includes “[t]he time needed to locate and identify, pull from the files, copy and re-shelve or refile a public record.” Malden will need to review each email to determine if it falls within the scope of the request. Malden estimates 1 minute per email to review and identify whether a particular email is relevant to the request, so a total of 1979 minutes. Segregation time “includes the time used to review records to determine what portions are subject to redaction or withholding under G. L. c. 4, § 7(26) or other legally applicable privileges. After reading each email, Malden will need 1 minute per email that remains to determine what portions are subject to redactions. Malden [] estimate[s] that 25% of the emails will remain, so 495 emails, for a total of 495 minutes. Redaction time includes the time to delete, or otherwise remove that part of a public record that is exempt from disclosure under G. L. c. 4, § 7(26) or other legally applicable privileges from non-exempt material. Malden estimates another minute per page, so another 495 minutes. As a result, Malden estimates a total of 2,969 minutes or 49.48 hours. In accordance with 950 CMR 37.02(2)(m)(1) you will not be charged for the first two (2) hours of those services. 47.48 Hours multiplied by $25 per hour yields a fee estimate of $1,187.00. . . . Although the City has provided details regarding its estimate and outlined the tasks involved in producing responsive records, it is unclear why the City requires 1 minute to review each of the 1,979 emails for responsiveness. The City must clarify this matter. In his appeal petition, Mr. Freidman states “[t]he RAO claims to have searched for responsive email records starting on May 1, 2020, despite the request seeking records after June 22, 2020, purposefully enlarging and exacerbating costs and required efforts for emails not relevant to and not responsive to the original request in an effort to thwart public oversight of a troubled agency.” Where Mr. Friedman states that he seeks records after June 22nd, it is unclear why the City has to search for or review records from May 1, 2020. The parties are encouraged to communicate further to determine whether any responsive records may be provided more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to

Greg Lucey SPR20/2447 Page 4 December 22, 2020 produce records sought more efficiently and affordably). Mr. Friedman may also wish to narrow the scope of his request by providing a smaller date range, specific topics or search terms that would enable the City provide the records more efficiently and affordably. Conclusion Accordingly, the City is ordered to provide Mr. Freidman 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 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