Malden News Network v. Malden, City of - Public Schools (SPR 20221451)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 28, 2022 SPR22/1451 Shirley Dorai Executive Assistant to the Superintendent Malden Public Schools 77 Salem Street, Room H104 Malden, MA 02148 Dear Shirley Dorai: On June 22, 2022, this office received your petition on behalf of the Malden Public Schools (School) requesting permission to charge for time spent segregating or redacting responsive records under G. L. c. 66, § 10 (d)(iv). As required by law, the School furnished a copy of its petition to the requestor. G. L. c. 66, § 10(c). In a letter dated June 8, 2022, the Malden News Network stated: [1] Please provide any email communication between the Superintendent’s office and the Mayor’s Office (broadly understood) or the School Committee from 4/1/22 to the date of your response to this request, with the exclusion of any email exclusively exchanged related to litigation or student records with Counsel. [2] Please provide any version(s) of the MPS line-item budget which have been shared between the groups named in [1]. Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). 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 SPR22/1451 Page 2 June 28, 2022 The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality's petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that the request is not for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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) Current Petition In its June 22nd petition, the School “…requests that it be allowed to charge $25 per hour for the time that it may take to segregate and redact the records described above.” The School asserts that it “…is filing this request only to the extent that some of the redactions encompass Exemption (c). It is not seeking approval for redactions subject to student records law or attorney-client privilege as outlined in its fee estimate.” The School states, “[i]n accordance with the exemption, Malden needs to redact information on the emails such as information on employees that relates to performance or complaints, and personal information and contact information for families, such as information about a family’s personal circumstances. Families and employees have a privacy interest to that

Shirley Dorai SPR22/1451 Page 3 June 28, 2022 information and the public interest does not outweigh the privacy interest because this information would not shed light on whether government officials are carrying out their duties in a law-abiding and efficient manner.” The School estimates “…it will need based on a sample of ten emails, 2.1 minutes per email given the level of detail, or 1,791.3 minutes or 29.86 hours. Redaction time includes the time to delete, or otherwise remove that part of a public record that is exempt from disclosure under G. L. c. 4, § 7(26) or other legally applicable privileges from non-exempt material. Again, based on a sample of seven emails to redact and the time to create a privilege log of the redactions for attorney client privilege, [the School] estimates another 4.39 minutes per email or 2,621.27 minutes or 43.69 hours. As a result, [the School] estimates a total of 73.55 hours. In accordance with 950 CMR 37.02(2)(m)(1) the requestor will not be charged for the first two (2) hours of those services.” Conclusion In light of the School’s petition, I find the School has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the School may assess a charge for the segregation and redaction of such exempt material. Please note, the Malden News Network has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4),10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Malden News Network, Requestor Greg Lucey, City Clerk, City of Malden Karen Anderson, Records Access Officer Felicia Vasudevan, Attorney for Malden