Open Commonwealth v. Malden, City of - Public Schools (SPR 20241682)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 18, 2024 SPR24/1682 Shirley Dorai Executive Assistant to the Superintendent Malden Public Schools 215 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 20, 2024, the requestor sought “[a]ny and all electronic calendar information of [an identified individual], including any draft and any deleted calendar items: This request seeks only electronic calendar information, for the time period January 1, 2018 through May 21, 2024.” Prior Petition This request was the subject of a prior petition. See SPR24/1685 Determination of the Supervisor of Records (June 10, 2024). In my June 10th determination, I found that the School had established good cause for a time extension of 30 days and that the School had met its burden to assess a fee for segregation and redaction. The School responded on June 4, 2024, providing a fee estimate. Unsatisfied with the School’s response, the requestor petitioned this office and this case, SPR24/1682, was opened as a result. 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). 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 SPR24/1682 Page 2 June 18, 2024 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 estimate – 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 (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 June 4th Response In its June 4, 2024 response, the School provided a fee estimate of $293.75 and stated the following: 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

Shirley Dorai SPR24/1682 Page 3 June 18, 2024 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. 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. Each page of the records [the requestor] seek[s] must be reviewed to determine which exemption or privilege applies… The District estimates that it will take one minute per 4 calendar entries for segregation and redaction. As a result, the District estimates a total of 13.75 hours. [The requestor] will not be charged for the first two hours. 11.75 hours for segregation and redaction at the rate of $25 per hour, yields a total fee estimate of $293.75. The actual fee to produce these records may vary based on the actual time spent to complete the necessary review and redaction process. The District will not begin to review the records you seek until it receives a check in the amount of $293.75. Subsequent to the opening of this appeal, in an email sent to this office on June 17, 2024, the School further explained its need to redact the records under the attorney-client privilege and Exemptions (a) and (c) of the Public Records Law. Current Appeal In his appeal petition, the requestor states the following: [The School] continues to erect a scheme of the exact same exemption claims, Attorney-Client Privilege, Student Records and Exemption C – The privacy exemption, for each and every public records request regarding [a named individual] and her Malden Public Schools Data. They have failed to ever prove the validity of any such exemptions, rather they report that these records “likely contain” said exemptions. The response provided failed to provide the actual calendar entries “…in electronic format and in the format in which they are regularly maintained”, instead they provided a summary document which specifically omits all data regarding the meetings, including attachments, resources, meeting rooms, dates, times, invitees, location and other data which is absolutely part of the responsive records set. Further, the response provided fails to provide metadata as specifically sought: “and specifically includes all electronic mail attachments and metadata.”

Shirley Dorai SPR24/1682 Page 4 June 18, 2024 Wherefore, OpenCommonwealth requests that SPR find and Order Malden to perform a diligent search for all responsive records, provide a Custodial Index of all responsive records (3300 are claimed in their response), without delay and without charge... Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). In this case, where the School has explained that it will charge for search and reproduction of the records, and has explained the amount of time required to search for records, the amount of time per page that it will take to review and redact the records, and confirmed that the lowest paid individual with the necessary skill is paid more than $25 per hour, 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). With regard to the requestor’s objections regarding the School’s claims of exemptions and the attorney-client privilege, please be advised that where the School has yet to produce the records, I find these matters cannot be addressed at this time, as the contents of these records are unclear. Once records are provided, the requestor may appeal the substantive nature of the School’s response within ninety calendar days. See 950 C.M.R. 32.08(1). I encourage the requestor and the School to communicate in order to facilitate producing records efficiently and affordably. The requestor may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. Conclusion Accordingly, I will consider this administrative appeal closed.

Shirley Dorai SPR24/1682 Page 5 June 18, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency