Amy Friedman v. Malden, City of (SPR 20211148)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 19, 2021 SPR21/1148 Ms. Shirley Dorai City of Malden Public Schools 77 Salem Street, Room H104 Malden, MA 02148 Dear Ms. Dorai I have received the petition of Bruce Friedman appealing the response of the City 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 March 12, 2021, Mr. Friedman requested “all emails where any email address from the @mhtl.com FQDN appear in one or more the following email fields; From: To: Cc: Bcc:” Mr. Friedman provided a timeframe of January 1, 2020 through the date the School responds with the records. The responsive records were the subject of a prior determination. See SPR21/0845 Determination of the Supervisor of Records (Supervisor) (April 15, 2021). In the April 15th determination, I ordered the School to provide a response to clarify why the School requires 2 minutes to review emails that are responsive to Mr. Friedman’s request. I found it was also not certain how many of the email samples have multiple items in the email chain to require 17,626 minutes of review. The School was ordered to clarify these issues. In addition, on March 26th, the School filed a petition with this office requesting permission to charge for time spent segregating and redacting responsive records under G. L. c. 66, § 10(d)(iv). In my April 2nd determination, I found that the School is permitted to charge for time spent segregating and redacting the requested records for any attorney-client privileged content, and any student record information as required by law to be redacted. See SPR21/0758 Determination of the Supervisor (April 2, 2021). On May 5th, the School provided Mr. Friedman with a revised fee estimate. Mr. Friedman appealed the School’s revised estimate of May 5th, as a result, the current appeal was opened. Mr. Friedman objects to the School not responding to the Supervisor’s order for clarification of how the School requires 2 minutes per email to segregate the emails. 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

Ms. Shirley Dorai SPR21/1148 Page 2 May 19, 2021 Fee estimate – municipalities 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. 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 School’s March 26th estimate and May 5th revised 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.” In its May 5th revised estimate, the School states that the 3 sample emails consists of, “[o]ne of the emails was 61 pages, the second was two pages and the third was four pages. The email that was 61 pages had 32 emails in the thread.” However, the May 5th letter reiterates the same time calculation in its March 26th letter of 2 minutes per email to review (segregate) the emails for exempt content. The School must clarify how much time it will take to segregate per page. In both its’ March 26th estimate and May 5th revised estimate the School calculates 3

Ms. Shirley Dorai SPR21/1148 Page 3 May 19, 2021 minutes per email to redact exempt material; however, it is unclear why the thee is a separate assessment of time for segregation and redaction. In both its estimates, the School suggests 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. Conclusion Accordingly, the School is ordered to provide Mr. Friedman with a response, 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: Mr. Bruce Friedman Ms. Felicia S. Vasudevan, Esq., Murphy, Hesse, Toomey & Lehane, LLP