Amy Friedman v. Malden, City of - Public Schools (SPR 20211043)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 7, 2021 SPR21/1043 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 and appeal This request was the subject of a previous fee petition and subsequent appeal. See SPR21/0742 Determination of the Supervisor of Records (April 1, 2021) and SPR21/0838 Determination of the Supervisor of Records (April 15, 2021). In my April 15th determination, I directed the School to clarify why it requires 20 minutes to review 10 emails to determine their responsiveness. Accordingly, I ordered the School to provide Mr. Friedman with a response. Subsequently, the School provided a response on April 20, 2021. Unsatisfied with the response, Mr. Friedman petitioned this office and this appeal, SPR21/1043, 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, 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 SPR21/1043 Page 2 May 7, 2021 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 School’s April 20th response In its April 20, 2021 response, the School reiterates that its search generated a total of 602 email records, and “[e]ach email must be reviewed as they may contain attorney-client privilege, student record information or private personal information under Exemption (C).” Further, the School explains, “[s]earch time includes the time needed to locate and identify a public record. Although Malden could narrow down the email search, by conducting a search with each school committee member in the ‘from,’ line and at least one school committee member in the ‘to,’ line, these records are not completely responsive to your request for emails where there is more than a majority of the school committee members present on the email. As a result, each email must be reviewed to determine whether it is responsive. Malden has no way to automate the search.” The School explains that because of this reviewing process, it pulled a sample of 10 emails which required 20 minutes to review as some had multiple emails in a chain. The School indicates, “[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 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.” As a result, the School “. . . estimates a total of 22.1 hours. In

Shirley Dorai SPR21/1043 Page 3 May 7, 2021 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.” 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 School 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 School 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 SPR21/0742 Determination of the Supervisor of Records (April 1, 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.