Brian DeLacey v. Malden, City of (SPR 20210153)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 5, 2021 SPR21/0153 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). On January 11, 2021, Mr. DeLacey requested emails sent or received by two named individuals “from 10/1/20 to the day a response to this request is provided.” The City provided a response on January 22, 2021, which included a fee estimate. Unsatisfied with the City’s response, Mr. DeLacey petitioned this office, and SPR21/0153 was opened as a result. 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 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 SPR21/0153 Page 2 February 5, 2021 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). Modification of the scope of the request In his appeal, Mr. DeLacey indicates “I received no offer of assistance or invitation to modify my request, so I contacted the RAO by phone (unanswered) and later via email…seeking a reasonable modification of the scope that would enable the production of records sought more efficiently and affordably.” A staff attorney of the Public Records Division contacted the City to see if they would be willing to work with the requestor in suggesting a modification of scope to the request in in order to provide the records more efficiently and affordably. The City responded indicating their willingness to work with Mr. DeLacey, and intend to provide Mr. DeLacey with a response suggesting a modification to “narrow the emails down on to and from with key words for the topics...” This office encourages Mr. DeLacey and the City to continue to communicate to facilitate providing records more efficiently and affordably. In light of both parties’ willingness to engage in communication to modify the scope of the request, I find it unnecessary to opine on the City’s January 22nd fee estimate at this time. Mr. DeLacey may wish to narrow the scope of his request and resubmit his request to the City. Any fee estimate by the City must be in compliance with the Public Records Law and its Access Regulations. If outstanding issues remain, Mr. DeLacey may further appeal within 90 days of receipt of the response. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian DeLacey