Amy Friedman v. Malden, City of (SPR 20210827)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 14, 2021 SPR21/0825; SPR21/0827-SPR21/0835 Greg Lucey City Clerk City of Malden 110 Pleasant Street, First Floor Malden, MA 02148 Dear Mr. Lucey: I have received the petitions of Bruce Friedman appealing the response of the City of Malden (City) to his requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Friedman submitted ten public records requests dated March 11, 2021, seeking various email correspondences between specified City employees during a certain time period. Previous Appeals This request was the subject of previous appeals. See SPR21/0761; SPR21/0762; SPR21/0764 - SPR21/0767; SPR21/0769; SPR21/0771; SPR21/0772; SPR21/0774 Supervisor of Records Determination (March 30, 2021). In my March 30th determination, I found the City intended on providing a response to Mr. Friedman. The City was ordered to provide Mr. Friedman with a response in a manner consistent with the Public Records Law and its Regulations. The City provided said response on March 31, 2021, which included a fee estimate. Unsatisfied with the City’s response, Mr. Friedman petitioned this office and SPR21/0825, SPR21/0827-SPR21/0835, were 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). 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 SPR21/0825; SPR21/0827-SPR21/0835 Page 2 April 14, 2021 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 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 31st response In its March 31st response, the City states, “[i]n response to the above-referenced public records requests, submitted by you on Friday, 3/12/21, received on Monday, 3/15/21 please consider this as the City of Malden’s formal written response. As you are aware, City offices have been and remain temporarily closed on Fridays, on an emergency basis, due to the State of Emergency declared by the Mayor in the City of Malden, and by the Governor in the Commonwealth of Massachusetts, as a result of the COVID19 pandemic. The City RAO and City staff are not present on Fridays due to the necessity for deep cleaning and sanitizing of City offices for safety of employees working during Monday through Thursday, and others visiting City offices during Monday through Friday. Due to the emergency closure on Fridays, the RAO as well as various Departments do not have access or ability to respond or work on responses on Fridays to your multiple public records requests.”

Greg Lucey SPR21/0825; SPR21/0827-SPR21/0835 Page 2 April 14, 2021 G. L. c. 66, § 10(e) In his appeals, Mr. Friedman contends “[t]he response was not timely made…per G. L. c. 66, § 10(b), G. L. c. 66, § 10(e) and/or 950 C.M.R. 32.06(2)(c).” 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).” Please be advised, “business day” is defined as Monday through Friday, but does not include weekdays where a custodian's office is closed unexpectedly. See 950 C.M.R. 32.02. If the City offices are scheduled to be closed every Friday, it is uncertain how the office is closed unexpectedly on Fridays. Where Mr. Friedman submitted a public records request on March 12, 2021, and the City provided a response on March 31st, 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. 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