Amy Friedman v. Malden, City of - Public Schools (SPR 20210589)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 17, 2021 SPR21/0589 Shirley Dorai Superintendent Executive Assistant /School Committee Clerk Malden Public Schools 77 Salem Street, Room H104 Malden, MA 02148 Dear Ms. Dorai: I have received your petition on behalf of the Malden Public Schools (School/Malden) requesting permission to charge for time spent segregating or redacting responsive records under G. L. 66, § 10(d)(iv). As required by law, the School furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On February 25, 2021, Bruce Friedman requested “… any emails between any members of the School Committee where the recipients (to, carbon copy, and/or blind carbon copy) of the email would create a quorum from January 2019 through the date you answer this request … in the electronic form which they are regularly maintained and must include all email metadata.” Subsequent to the opening of this petition, Mr. Friedman sent responses to this office on March 11, 2021, that address the School’s petition. Petitions for ability to assess fees 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. 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 (Supervisor) 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). 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 SPR21/0589 Page 2 March 17, 2021 The Supervisor may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request, the fee is necessary such that the request could not have been prudently completed without the redaction, segregation or fee in excess of $25 per hour, and the amount of the fee is reasonable and the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. Id. Current Petition In its March 10, 2021 petition, the School “requests that it be allowed to charge $25 per hour for the time that it may take to segregate and redact the records …” The School states it “estimates a total of 68.46 hours. In accordance with 950 CMR 37.02(2)(m)(1) Mr. Friedman will not be charged for the first two (2) hours of those services. 66.46 multiplied by $25 per hour yields a fee estimate of $1,661.50.” The School indicates it “has approximately 1,785 emails that may be responsive to his request.” The School states it “is filing this request only to the extent that some of the redactions encompass attorney-client privilege and under Exemption (c).” The School indicates, “Malden spent three hours locating the emails. Malden took a sample of ten emails. It took 20 minutes to review the emails to determine which ones are responsive to the request, as some of the emails had multiple emails in a chain. Extrapolating that up, it would take 3,570 minutes or 59.5 hours to search these records. Thus, Malden estimates a total of 62.5 hours to search the records.” The School explains, “[t]o comply with the request, Malden will need to redact the records as it expects that some of the emails will be school committee members soliciting advice from the attorney for Malden … [g]iven that some emails will relay communications between Malden and its attorneys, these communications were not shared with the public and were shared in confidence, there was no waiver of the privilege. They must be redacted.” The School indicates, “[a]dditionally, these emails require redactions in accordance with the exemption set for at G.L. c. 4, § 7(26)(c).” The School explains it “needs to redact information on the emails such as information on employees that relates to performance or complaints, and personal information and contact information for families, such as information about a family’s personal circumstances. Families and employees have a privacy interest to that information and the public interest does not outweigh the privacy interest because this information would not shed light on whether government officials are carrying out their duties in a law-abiding and efficient manner.”

Shirley Dorai SPR21/0589 Page 3 March 17, 2021 The School further explains, “[o]ut of the sample, one of the ten emails was responsive. Each email must be reviewed as they may contain attorney-client privilege, student record information or private personal information under Exemption (C) ... [i]t took Malden 1 minute to segregate the relevant email. Malden thus estimates another 178.5 minutes or 2.98 hours.… Malden estimates another 1 minute for redactions based on that email or another 178.5 or 2.98 hours.” In light of the School’s petition, I find the School has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). Therefore, the School may assess a fee for the time spent to segregate and redact these requested records. Conclusion Accordingly, I find the School has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the School may assess a fee for segregation and redaction. The parties are encouraged to continue to communicate to facilitate providing records 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 agency to produce records sought more efficiently and affordably). Any fee estimate from the School must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Mr. Friedman has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Bruce Friedman Felicia Vasudevan, Esq.