Amy Friedman v. Malden, City of - Public Schools (SPR 20210838)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 15, 2021 SPR21/0838 Shirley Dorai Malden Public Schools 110 Pleasant Street Malden, MA 02148 Dear Ms. Dorai: I have received the petition of Bruce Friedman appealing the response of the Malden Public Schools (School/Malden) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 11, 2021, Bruce Friedman requested emails from identified individuals “[f]or the time period January 1, 2020 through the date you respond with the responsive documents.” Previous petition This request was the subject of a previous fee petition. See SPR21/0742 Determination of the Supervisor of Records (April 1, 2021). Please refer to the determination in SPR21/0742 for analysis of this issue. The School provided a fee estimate on March 25, 2021. Objecting to the fees, Mr. Friedman petitioned this office and this appeal, SPR21/0838, was opened as a result. 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 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 SPR21/0838 Page 2 April 15, 2021 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 School’s March 25th estimate In its March 25, 2021 fee estimate, the School indicates that its search generated a total of 602 email records. The School states, “[e]ach email must be reviewed as they may contain attorney-client privilege, student record information or private personal information under Exemption (C).” The School explains that with a sample of 10 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 1204 minutes or 20.1 hours to search these records. Thus, Malden estimates a total of 20.1 hours to search the records.” The School also states that “[i]t took Malden 1 minute to segregate the relevant email. Malden thus estimates another 60.2 minutes or 1 hour. . . . Malden estimates another 1 minute for redactions based on that email or another 60.2 minutes or 1 hour.” The School indicated that although the hourly rate of the lowest paid employee capable of producing the records exceeds $25.00, it would calculate its hourly rate at $25. As a result, the School “. . . estimates a total of 22.1 hours. In accordance with 950 CMR 37.02(2)(m)(1) you will not be charged for the first two (2) hours of those services. 20.1 multiplied by $25 per hour yields a fee estimate of $502.50.” Based on the School’s response, it is unclear why the School requires 20 minutes to review 10 emails to determine if they are responsive to the request. Particularly, it is not certain how many of the email samples have multiple items in the email chain to require 20 minutes of review. The School must clarify this issue. In its estimate, the School suggested that Mr. Friedman could potentially reduce this estimate if he could provide “. . . a specific person for the ‘to’ and ‘from,’ boxes of the email search.” This office encourages Mr. Friedman and the School 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). Mr. Friedman may wish to narrow his request. Open Meeting Law In his appeal petition, Mr. Friedman raises certain issues regarding the Open Meeting

Shirley Dorai SPR21/0838 Page 3 April 15, 2021 Law that are beyond the purview of the Public Records Law. Mr. Friedman states, “. . . [t[here is no attorney-client privilege exception to the Open Meeting Law.” Mr. Friedman is advised that any issues concerning the Open Meeting Law is within the authority of the Office of the Attorney General (AGO) and not this office. Mr. Friedman may wish to contact the AGO if he seeks a determination on this matter. See G. L. c. 30A, § 23. Conclusion Accordingly, the School 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