Amy Friedman v. Malden, City of - Public Schools (SPR 20210845)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 15, 2021 SPR21/0845 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 12, 2021, Bruce 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:.” Previous petition This request was the subject of a previous fee petition. See SPR21/0758 Determination of the Supervisor of Records (April 2, 2021). Please refer to the determination in SPR21/0758 for analysis of this issue. The School provided a fee estimate on March 26, 2021. Objecting to the fees, Mr. Friedman petitioned this office and this appeal, SPR21/0845, 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 26th estimate In its March 26, 2021 fee estimate, the School indicates that its search generated a total of 8,813 email records. The School contends that “[e]ach of the 8,813 emails must be reviewed as they may contain attorney-client privilege and student record information.” The School “…estimates 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.” With respect to redaction time, the School explains that “…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.” 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 734.5 hours…[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.” Based on the School’s response, it is unclear why the School requires 2 minutes to review emails that 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 17,626 minutes of review. The School must clarify this issue. In its estimate, the School suggested that Mr. Friedman could potentially reduce this estimate “…by limiting the time period of the 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 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 per the following AGO decision OML 2019-140.” 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.

Shirley Dorai SPR21/0838 Page 3 April 15, 2021 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