Amy Friedman v. Malden, City of - Public Schools (SPR 20211042)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 7, 2021 SPR21/1042 Shirley Dorai Records Access Officer Malden Public Schools 77 Salem Street Malden, MA 02148 Dear Ms. Dorai: I have received the petition of Bruce Friedman appealing the response of Malden Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 25, 2021, Mr. Friedman requested “… any emails between any members of the School Committee where the recipients (to, carbon copy, and/or blind carbon copy) of the email would create a quorum from January 2019 through the date you answer this request … in the electronic form which they are regularly maintained and must include all email metadata.” Previous Determinations The requested records were the subject of previous determinations. See SPR21/0589 Determination of the Supervisor of Records (March 17, 2021); SPR21/0718 Determination of the Supervisor of Records (April 6, 2021). In my April 6th determination, I found the School’s fee estimate has not explained with specificity why the indicated amount of time is necessary for producing the requested records. The City was ordered to provide Mr. Friedman with a revised response, in a manner consistent with the order, the Public Records Law and its Regulations. The School provided said response on April 20, 2021. Unsatisfied with the School’s response, Mr. Friedman petitioned this office and this appeal, SPR21/1042, was 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

Shirley Dorai SPR21/1042 Page 2 May 7, 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. 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. 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 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). The School’s April 20th response In its April 20th response, the School indicates it “had to conduct a search with each school committee member in the ‘from,’ line and at least one school committee member in the ‘to,’ line. There is no other way to narrow down the information requested. The search generated 1,785 emails. Malden is not certain what percentage of the emails are responsive to the request.” The School further explains, “…each email must be reviewed to determine whether it is responsive. Malden has no way to automate the search. Malden spent three hours locating the emails. Malden took a sample of ten emails. It took 20 minutes to review the ten emails to

Shirley Dorai SPR21/1042 Page 3 May 7, 2021 determine which ones are responsive to the request, as some of the emails had multiple emails in a chain.” The School states “[s]pecifically, it took the following time for each of the ten emails: 1) Email1 - 0.5 minutes 2) Email2 - 5 minutes 3) Email3 - 0.5 minutes 4) Email4 - 3 minutes 5) Email5 - 1 minute 6) Email6 - 2 minutes 7) Email7 - 6 minutes 8) Email8 - 1 minute 9) Email9 - .5 minutes 10) Email10 - .5 minutes” The School explains “Email 2 that was one of the longest was 51 pages with 29 emails in the chain. Email 7 that was also one of the longest estimates was 49 pages with over 60 emails. Extrapolating that up, it would take 3570 minutes or 59.5 hours to search these records. Thus, Malden estimates a total of 62.5 hours to search the records.” The School indicates “[i]t took Malden 1 minute to segregate the relevant email. Malden thus estimates another 178.5 minutes or 2.98 hours…Malden estimates another 1 minute for redactions based on that email or another 178.5 or 2.98 hours. As a result, Malden estimates a total of 68.46 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. 66.46 multiplied by $25 per hour yields a fee estimate of $1,661.50.” In its response, the School suggests that Mr. Friedman “. . . could potentially reduce this estimate if [he] provided a specific person for the ‘to’ and ‘from,’ boxes of the email search.” In light of the School’s response, I encourage Mr. Friedman and the City to communicate in order to facilitate producing records efficiently and affordably. Mr. Friedman may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The City must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or 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 agency or municipality to produce records sought more efficiently and affordably). Please be advised the School received approval to charge for segregation and redaction, to the extent the responsive records contain the exempt information. See SPR21/0589 Determination of the Supervisor of Records (March 17, 2021). --

Shirley Dorai SPR21/1042 Page 4 May 7, 2021 Conclusion Accordingly, I will consider this administrative appeal closed. If issues remain after further communication, Mr. Friedman may file an appeal. Sincerely, Rebecca S. Murray Supervisor of Records cc: Bruce Friedman Felicia Vasudevan, Esq.