Commonwealth Transparency v. Malden, City of - Public Schools (SPR 20241309)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 14, 2024 SPR24/1309 Shirley Dorai Records Access Officer Malden Public Schools 110 Pleasant Street, 3rd Floor Malden, MA 02148 Dear Ms. Dorai: I have received the petition of Commonwealth Transparency (“requestor”) appealing the response of the Malden Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 15, 2024, the requestor sought: [T]he following documents/records in the possession or under the control of [the] school/district or town/city for the time period January 1, 2018 through April 15, 2024: [1.] Any and all contracts, communications, or documents of any kind with the following [specified LLC and two named individuals]... [2.] Any and all payments made to [specified LLC and two named individuals]... [3.] Any and all conflict of interest documents for [specified LLC and two named individuals]... This requests includes [sic] but is not limited to email, email-attachments, text messages, calendar entries, voice mail messages and/or physical documents. Previous Petition This request was the subject of a previous petition from the School. See SPR24/1313 Determination of the Supervisor of Records (May 3, 2024). In my May 3rd determination, I granted the School an extension of 30 business days, and found that the School may assess a fee for the segregation and redaction of responsive records. Concurrent with its petition, the School provided a fee estimate to the requestor on April 30, 2024. Objecting to the fees, the requestor appealed, and this case was opened as a result. 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 SPR24/1309 Page 2 May 14, 2024 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 agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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 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 Appeal In the appeal petition, the requestor contends that “Malden failed to respond within 10 business days as required by law and as a result, cannot charge for any of the records.” The

Shirley Dorai SPR24/1309 Page 3 May 14, 2024 requestor further contends that “Malden also failed to respond to the obvious and verbose [sic] modification of the previous modification, which means they have proposed the EXACT same response and fee petition as the prior request.” G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” In this case, where the requestor submitted the request on April 15, 2024, a holiday, and the School responded on April 30, 2024, by providing and a fee estimate under G. L. c. 66, § 10(b), I find the School may assess a fee to produce responsive records. The School’s April 30th Fee Estimate In its April 30, 2024 response, the School provides a fee estimate totaling $10,606.25. In support of its fee estimate, the School states that “[a] search was conducted and 11,568 emails and attachments were found that are responsive to” Part 1 of the request, “13,588 emails and attachments were found that are responsive to” Part 2 of the request, and “419 emails and attachments were found that are responsive to” Part 3 of the request. Further, the School explains the following in support of its fee estimate: First, these records likely contain the content of discussions between the District and its attorneys, for purpose of obtaining legal advice, which has not been shared with the public and is therefore protected by the attorney-client privilege. . . . Second, the records contain personal identifying information of public school students. . . . Finally, the responsive records may include personnel record information or private personal information which is not subject to disclosure pursuant to Exemption (c) to the Public Records Law. . . . In this case, the lowest paid employee who has the necessary skill required to segregate and redact the records requested is a salaried employee whose effective hourly rate exceeds $25 per hour. . . . The District estimates that it will take one minute per email to segregate and redact the email. As a result, the District estimates a total of 426.25 hours. . . . [The requestor] will not be charged for the first two hours. 424.25 hours for segregation and redaction at the rate of $25 per hour, yields a total fee estimate of $10,606.25.

Shirley Dorai SPR24/1309 Page 4 May 14, 2024 In the appeal petition, and in multiple emails to this office subsequent to the opening of this appeal, the requestor objects to the applicability of the exemptions described cited by the School. Please note that where the School has yet to provide records, I am unable to opine on any withheld records or the application of any exemptions the School may cite at this time. In light of the School’s response, I encourage the requestor and the School to communicate in order to facilitate producing records efficiently and affordably. The requestor may consider narrowing the scope of the request to enable the school provide the records more efficiently and affordably. 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 SPR24/1313 Determination of the Supervisor of Records (May 3, 2024). Conclusion Accordingly, I will consider this administrative appeal closed. Any revision to the request would result in the requirement to issue a revised fee estimate. Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency Felicia S. Vasudevan, Esq.