Amy Friedman v. Malden, City of - Office of the City Solicitor (SPR 20210649)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 31, 2021 SPR21/0649 Kathleen M. Fallon, Esq. City Solicitor City of Malden 215 Pleasant Street Malden, MA 02148 Dear Attorney Fallon: 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 February 25, 2021, Mr. Friedman requested: “any emails between any members of the City Council where the recipients (to, carbon copy, and/or blind carbon copy) of the email would create a quorum from January 2020 through the date you answer this request. These emails are to be provided in the electronic form which they are regularly maintained and must include all email metadata.” It is this office’s understanding that this appeal is regarding Mr. Friedman’s request assigned the City’s FOIA Direct No. 2021-0066. In a March 16, 2021 response regarding the request referenced above, the City provided a fee estimate to provide responsive records. The City indicates that it has compiled one-thousand nine-hundred and fifty-five emails (1,955 emails) through a search based on Mr. Friedman’s request terms. Due to the City’s combined estimate for the request numbered 2021-0066 with a different request, it is unclear what the total cost is to produce the emails responsive to this particular request. As a result of the fee estimate for this request, Mr. Friedman petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, Mr. Friedman asserted, “[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.” It is also Mr. Friedman’s 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

Kathryn M. Fallon, Esq. SPR21/0649 Page 2 March 31, 2021 contention that the response was sent after the close of business at 5:27 PM on 3/16/21 making the response effective on 3/17/21, or the 15th business day. Fees - Timeliness of response If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. However, it is unclear whether the City provided Mr. Friedman with a written response within ten (10) business days from his request dated February 24, 2021. The City is advised that under the Public Records Law, “[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 in compliance with G. L. c. 66 §10(e) and 950 C.M.R. 32.06(2)(c). I find that the City must provide a response that demonstrates that it responded within 10 business days following receipt of Mr. Friedman’s request. Conclusion Accordingly, the City is ordered to provide Mr. Friedman with a 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