Commonwealth Transparency v. Malden, City of - Public Schools (SPR 20241633)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 13, 2024 SPR24/1633 Shirley Dorai Records Access Officer Malden Public Schools 110 Pleasant Street Malden, MA 02148 Dear Ms. Dorai: I have received the petition of Commonwealth Transparency (“requestor”) appealing the response of the Malden Public Schools (School/District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 7, 2024, the requestor sought the following: email (with attachments), text message, or other record between ONLY [an identified individual] and [another identified individual] from July 1, 2021 to May 7, 2023: Where the subject, body, description, or other identifying information includes any of the following: audit, auditing, audits, auditor, “financial data”, “financial accounting system”, “End-of-Year Financial Report”, EOYR, “Salary”, or “Financial Report”, using any form of capitalization. The only records sought pertain to FINANCIAL, FINANCE or ACCOUNTING matters, and DOES NOT INCLUDE student or attorney-related records. Previous Petition This request was the subject of a previous petition from the School. See SPR24/1555 Determination of the Supervisor of Records (May 29, 2024). In my May 29th determination, I found that the School met its burden for an extension of time and to assess fees for segregation and redaction. Concurrent with its petition to this office, the School also provided a fee estimate to the requestor on May 21, 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 SPR24/1633 Page 2 June 13, 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 “[t]he request specifically excludes verbatim ‘[t]he only records sought pertain to FINANCIAL, FINANCE or ACCOUNTING

Shirley Dorai SPR24/1633 Page 3 June 13, 2024 matters, and DOES NOT INCLUDE student or attorney related records.’” The requestor further contends that “[t]he subjects of this records request, ... are by definition public figures, public officials and public employees and have a diminished expectation of privacy as such.” The School’s May 21st Fee Estimate In its May 21, 2024 response, the School provides a fee estimate totaling $375.00. In support of its fee estimate, the School provides the following information: The District is in possession of approximately 381 emails and attachments numbering 2,040 pages that are responsive to your request. The District did not find any other responsive documents. . . . The records you seek need to be reviewed, and potentially redacted, for several reasons. 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.... Accordingly, the records will need to be reviewed to determine if they contain information protected by the attorney-client privilege and then any necessary redactions will need to be made. . . . Second, the records include personnel record information or private personal information which is not subject to disclosure pursuant to Exemption (c) to the Public Records Law.... 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 and students, which are sensitive to them. . . . 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. In accordance with 950 CMR 37.02(2)(m)(1), you will not be charged for the first two (2) hours of those services and will only be charged at a rate of $25 per hour. . . . The District estimates that it will take 30 seconds per page to segregate and redact the email. As a result, the District estimates a total of 17 hours. You will not be charged for the first two hours. 15 hours for segregation and redaction at the rate of $25 per hour, yields a total fee estimate of $375.00. In its May 21st fee estimate, the School confirmed that it is not charging for the first two hours of work, that it is only charging for segregating and redacting the records, and has explained the amount of time required to segregate and redact the records. Additionally, as noted above, the School received approval to charge for segregation and redaction, to the extent the responsive records contain the exempt information described above. See SPR24/1555 Determination of the Supervisor of Records (May 29, 2024). In light of the School’s May 21st

Shirley Dorai SPR24/1633 Page 4 June 13, 2024 response, I find the School has met its burden to explain how it has provided a reasonable fee estimate for the production of records responsive to this request. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). 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. Conclusion As set forth above, I find the School has met its burden in responding to the request at this time. Any revision to the request would result in the requirement to issue a revised fee estimate. Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency