Amy Friedman v. Malden, City of - Public Schools (SPR 20210758)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 2, 2021 SPR21/0758 Shirley Dorai Executive Assistant to the Superintendent Malden Public Schools 77 Salem Street, Room H104 Malden, MA 02148 Dear Shirley Dorai: On March 26, 2021 this office received your petition on behalf of the Malden Public Schools (School) requesting permission to charge for time spent segregating or redacting responsive records under G. L. c. 66, § 10 (d)(iv). As required by law, the School furnished a copy of their petition to the requestor, Bruce Friedman. G. L. c. 66, § 10(c). On March 12, 2021, Mr. Friedman requested “...all emails where any email address from the @mhtl.com FQDN appear in one or more of the following email fields; From: To: Cc: Bcc:.” Petitions to Assess Fees - Municipality 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) 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 SPR21/0758 Page 2 April 2, 2021 Current Petition In its March 26th 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 described above.” The School explains it is “...filing this request only to the extent that some of the redactions encompass attorney-client privilege. It is not seeking approval for redactions subject to student records law as outlined in its fee estimate.” The School notes, “[t]o comply with Mr. Friedman’s request, Malden will need to redact the records as they contain attorney-client privilege as the emails describe discussions between Malden and its attorneys. The Supreme Judicial Court stated that a governmental entity may assert attorney client privilege to protect documents against disclosure where they contain communications between lawyer and client for purpose of obtaining legal advice. Suffolk Constr. Co., Inc. v. Div. of Cap. Asset Mgmt., 449 Mass. 444 (2007). Given that these emails 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.” The School asserts that “[e]ach of the 8,813 emails must be reviewed as they may contain attorney-client privilege and student record information. Segregation time ‘includes the time used to review records to determine what portions are subject to redaction or withholding under G. L. c. 4, § 7(26) or other legally applicable privileges.’” The School estimates that “...it will need based on a sample of three emails, two minutes per email given the level of detail, or 17,626 minutes or 293.8 hours. Redaction time includes the time to delete, or otherwise remove that part of a public record that is exempt from disclosure under G. L. c. 4, § 7(26) or other legally applicable privileges from non-exempt material. Again, based on a sample of three emails to redact and the time to create a privilege log of the redactions for attorney client privilege, Malden estimates another 3 minutes per email or 26,439 minutes or 440.7 hours. As a result, Malden estimates a total of 734.5 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. 732.5 multiplied by $25 per hour yields a fee estimate of $18,311.25.” Conclusion It is my determination that the School is permitted to charge for time spent segregating and redacting the requested records. To the extent the responsive records contain the exempt information as described above, the School may assess a fee for segregation and redaction. Further, this office encourages Mr. Friedman and the School 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 municipality to produce records sought more efficiently and affordably).

Shirley Dorai SPR21/0758 Page 3 April 2, 2021 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 Greg Lucey Felicia Vasudevan, Esq.