Malden News Network v. Malden, City of - Public Schools (SPR 20231863)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 17, 2023 SPR23/1863 Shirley Dorai Executive Assistant Malden Public Schools 110 Pleasant Street Malden, MA 02148 Dear Ms. Dorai: On August 11, 2023, this office received your petition on behalf of the Malden Public Schools (School) seeking an extension of time to produce records and requesting permission to charge for time spent segregating and redacting responsive records under G. L. 66, § 10(d)(iv). See G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the School furnished a copy of this petition to the requestor. G. L. 66, § 10(d)(iv). On July 31, 2023, Malden News Network requested: [A]ll email, along with attachments and any metadata, sent or received from [an identified email address], after 6/30/20 to the date of your response to this request. In addition to providing records where [an identified email address] appears anywhere in the TO, CC, or BCC address field, please provide records where [an identified email address] appears in the email content / body during the timeframe indicated. Petition to Assess Fees – Municipalities 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 SPR23/1863 Page 2 August 17, 2023 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. 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 this request was not made 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 2 (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). Current Petition In its August 11th petition, the School states the following: [B]ecause private citizens may have reached out to [an identified individual] as a school committee member or he may have addressed personnel grievances and as principal he would have confidential personnel information, the responsive records will include personnel record information which is not subject to disclosure pursuant to Exemption (c) to the Public Records Law….

Shirley Dorai SPR23/1863 Page 3 August 17, 2023 Records responsive to your request will thus need to be reviewed and redacted to the extent they contain private email addresses and contact information and information concerning employees that relate to performance, complaints, evaluations, discipline, and any other exempt information. As noted previously, the [School] will petition to charge a fee under this exemption. 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 fee for the segregation and redaction of such exempt material. This office encourages the parties 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). Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id.

Shirley Dorai SPR23/1863 Page 4 August 17, 2023 The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current Petition In its August 11th petition, the School states: Given the broad scope of the request, the volume of potentially responsive records, and the sensitive and confidential nature of the subject matter, which will result in the necessity for detailed review and redaction of the records, the [School] submits that it is not reasonable to require it to produce the responsive records within 10 business days. Therefore, [School] hereby petitions for an extension of time to respond to the request, given that the scope of redaction required to prevent unlawful disclosure is significant. The [School] will be unable to complete its review, redaction, and production of records during normal business hours of operation without an extension. Pursuant to M.G.L. c. 66, section 10(c), the [School] requests an additional 30 business days beyond the time specified under the statute (25 business days)—for a total of 55 business days from the date of receipt of payment for the work, to respond to the request. I find that in light of the capacity of the School to produce the records without the extension and the potential scope of redactions, the School has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the School an extension of 30 business days to furnish copies of records responsive to Malden News Network’s request. See G. L. c. 66, § 10(c). To the extent possible, the School must provide responsive records on a rolling basis. Conclusion 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 Town may assess a fee for the segregation and redaction of such exempt material. Additionally, I find the School has established good cause for a time extension of 30 business days as described above. Please note, the requestor 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); G. L. c. 66, § 10A(c).

Shirley Dorai SPR23/1863 Page 5 August 17, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Malden News Network