Bruce Friedman v. Malden, City of - Public Schools (SPR 20210491)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 11, 2021 SPR21/0491; SPR21/0526 Ms. Shirley Dorai Office of the Superintendent City of Malden Public Schools 77 Salem Street Malden, MA 02148 Dear Ms. Dorai: I have received the petitions of Bruce Friedman appealing the response of the City of Malden Public Schools (School 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 School District’s 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 School District’s electronic mail system including drafts, deleted items and calendar entries; 3. All materials relating to the conduct of any investigation within the School District; 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 School’s Special Education Department from the School District Year 2017-2018 through the date you respond to this request. Prior appeals The requested records are the subject of prior appeals. See SPR20/1941 Determination of the Supervisor of Records (Supervisor) (October 9, 2020); SPR20/1942 Determination of the Supervisor of Records (October 21, 2020); SPR20/1043 Determination of the Supervisor of Records; SPR20/2044 Determination of the Supervisor of Records (November 5, 2020). In my November 5, 2020 determination, I found that the School District may redact student records information pursuant to Exemption (a), the Family Education Rights Privacy Act (FERPA) and 603 C.M.R, 23.00 (student records), the finding in Champa v. Weston Public Schools, 473 Mass. 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

Ms. Shirley Dorai SPR21/0491; SPR21/0526 Page 2 March 11, 2021 86 (2015). In addition, the School District demonstrated that certain records may be withheld and/or redacted under the common law attorney-client privilege. In my November 5th determination, I also found pertaining to the School District’s October 14, 2020 estimate of 7,020 hours to search, segregate and redact all of the records, that it was unclear how the School District arrived at the 7,020 hour figure. I ordered the School District to clarify how much time it expects to spend searching for and segregating responsive records, reviewing for redactions, and producing copies. Furthermore, I ordered the School District to demonstrate whether it responded to the September 24, 2020 public records request within 10 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). Current appeals – SPR21/0491 and SPR21/0526 No duty to create records The School District’s October 14, 2020 response included a fee estimate for records responsive to Mr. Friedman’s Requests Number 1 and 2. In addition, the School District indicated that it has no records responsive to Mr. Friedman’s Request Number 3. Under the Public Records Law, the School District is not required to create records in response to a Public Records request. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26); see also 32 Op. Att’y Gen. 157, 165 (May 18, 1977). ----- The School District, in response to my November 5th determination, provided Mr. Friedman with a November 30, 2020 response. The School District’s November 30th response asserts, “[i]t will take approximately 7,020 hours to search, segregate and redact all of the records that you have requested. The [School] District needs to review every mail outlined. The [School] District estimate that it will take 5,175 hours to review the emails in your first request and 1845 hours for your second request. The estimate is based on five minutes per email, with additional time required for calendar entries. In accordance with 950 C.M.R. 37.02(2)(m)(1) you will not be charged for the first (2) hours of those services. [7,016] hours multiplied by $25 per hour yields a fee estimate of $175,400.” As a result of the November 30th response, Mr. Friedman petitioned the Supervisor and appeal SPR21/0491 was opened on February 21, 2020.

Ms. Shirley Dorai SPR21/0491; SPR21/0526 Page 3 March 11, 2021 In his February 24th petition, Mr. Friedman asserts, “[o]n November 30, the attached response was received, however the issue of timeliness was completely skirted. Per the [Supervisor’s November 5th order], the City was required to provide a response specifically: ‘Compliance with G. L. c. 66, § 10(e).’” Mr. Friedman continues to assert that the School District cannot assess any fees because the School District did not respond to his request of September 24, 2020 until October 14, 2020. Mr. Friedman posits that the School District did not provide this response within ten (10) business days. The School District, through its Legal Counsel, Felicia S. Vasudevan of Murphy, Hesse, Toomey & Lehane, P.C., provided a March 2, 2021 email response to the Public Records Division to address the School District’s timeliness in responding to Mr. Friedman’s September 24, 2020 request through the City’s web-based request system. In her March 2, 2021 response, Attorney Vasudevan asserts, “…effective the week of August 17, 2020, the Mayor exercising his emergency powers during the pandemic, altered City Hall hours to afford one day, Friday, to deep clean City facilities. City Hall was closed on Fridays. City Hall was otherwise open before August and the need to close for pandemic related reasons. Thus, the Friday closure was unexpected, and extraordinary, not expected or routine and thus Fridays did not count as business days and Malden provided a response within 10 business days, not counting Fridays.” Please note, while a records access officer must respond to a request for public records within 10 business days, a business day does not include a weekday where a custodian’s office is unexpectedly closed. G. L. c. 66, § 10(a); 950 C.M.R. 32.02. However, the School District did not explain how many of the 7,020 hours were for “search” of the records. The School District has only explained that all these hours are attributed to the task of review (segregation) and redaction. While the Supervisor ruled in the November 5th determination that the School District met its burden to segregate and redact under Exemption (a) and the attorney-client privilege, it is unclear whether the School District filed a fee petition to assess fees for content segregated and redacted under Exemption (c). The School District did not provide further explanation of the estimate pertaining to “search time” and any fees assessed for segregation and/or redaction under Exemption (c). 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). -- The School District must clarify whether it has assessed time for segregating and/or redacting records under Exemption (c), how much time was allocated to “search of the records,” and whether the School District filed a petition for approval to charge fees for segregation and redaction that is not required by law.

Ms. Shirley Dorai SPR21/0491; SPR21/0526 Page 4 March 11, 2021 Conclusion Accordingly, the School District is ordered to provide a further response to the request, 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: Bruce Friedman Felicia S. Vasudevan, Esq., Murphy Hesse Toomey & Lehane