Amy Friedman v. Malden, City of - Office of the City Solicitor (SPR 20210628)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 29, 2021 SPR21/0628 Greg Lucey RAO 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). On February 25, 2021, Mr. Friedman requested “all public records requests for all departments for the period of January 1, 2019 through the date which you respond…” Previous Appeal The requested records were the subject of a previous appeal. See SPR21/0606 Determination of the Supervisor of Records (March 16, 2020). In my March 16th determination, I found the City had provided a response on March 15, 2021. Whereas the basis of this appeal was opened as a result of the City’s lack of a written response, I considered the administrative appeal closed. In its March 15th response the City included a fee estimate. Unsatisfied with the City’s response, Mr. Friedman petitioned this office and SPR21/0628 was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian 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 SPR21/0628 Page 2 March 29, 2021 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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 ($.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). The City’s March 15th response In its March 15th response, the City states “[w]e have completed the work in reference to your request…[p]lease find attached estimated fee schedule to satisfy your PRR 2021-0068.” G. L. c. 66, § 10(e) In his appeal, Mr. Friedman contends “[t]he RAO had until the COB on Wednesday, March 10, 2021 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 respond timely, the request was sent on 2/24/2021 after hours received on 2/25/2021 at the start of business. The response was due by the close of business on Wednesday, March 10, 2021.” 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 February 25, 2021, and the City provided a response on March 15th, I find it is unclear whether the City complied with G. L. c. 66, § 10(e). The City is advised in order to assess a fee for the requested records, it must demonstrate it provided a response in compliance with G. L. c. 66, § 10(b). The City must clarify this.

Greg Lucey SPR21/0628 Page 3 March 29, 2021 Conclusion Accordingly, the City 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 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