Malden News Network v. Malden, City of - Office of the City Clerk (SPR 20241706)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 21, 2024 SPR24/1706 Carol Desiderio City Clerk City of Malden 215 Pleasant Street Second Floor, Room 220 Malden, MA 02148 Dear Ms. Desiderio: I have received the petition of the Malden News Network (“requestor”) appealing the response of the City of Malden (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 23, 2024, the requestor sought the following: … any records related to the standards for temperature monitoring, cooling, control, adjustment, repair or general operation of HVAC systems, including hourly temperature measurements (or whatever information is available) with clearly designated location descriptions such as floor, room or office level descriptions for each of the following FIVE public buildings on the days from May 15, 2024 to the date of this request [May 23, 2024]: [1] City Hall [2] Malden High School [3] Beebe School [4] Early Learning Center [5] Malden Public Library Records are expected to include reports, standards, health or OSHA guidelines, graphs, spreadsheets, emails, tables, charts, plans, corrective tickets, complaints, repair bills or any other records which were created, received, used or in use during the timeframe requested. The City responded on May 29, 2024, and provided a fee estimate of $860.50 to gather and download the requested information from the HVAC units in each of the listed locations. On June 4, 2024, the requestor modified the request to three public buildings: City Hall, Beebe School and the Early Learning Center. In response to the requestor modifying the request, on June 6, 2024, the City provided a revised fee estimate of $423.00. 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

Carol Desiderio SPR24/1706 Page 2 June 21, 2024 Previous appeal This request was the subject of a previous appeal. See SPR24/1688 Determination of the Supervisor of Records (June 6, 2024). In my June 6th determination, I learned the City had provided a supplemental response to the requestor on June 6, 2024. Unsatisfied with the City’s June 6th response, the requestor petitioned this office and this appeal, SPR24/1706, was opened as a result. Fees - Municipalities 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. 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 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The City’s May 29th and June 6th Fee Estimate Responses In its original May 29, 2024 fee estimate, the City identified approximately a total of 227 HVAC units across the three requested buildings distributed as follows: [1] City Hall – 40 [2] Beebe School – 130 [3] Early Learning Center – 57 The City asserted, “[a] test was done on 2 of the units and it took approximately 5 minutes per unit to gather and download the information.” Accordingly, following the modified request, on June 4, 2024, the City asserted the modified request, “…would result in 227 units @

Carol Desiderio SPR24/1706 Page 3 June 21, 2024 5 minutes per unit = 18.916 hours. Less the 2 hours allowed by statute is 16.916 x $25 or $423.” In its June 6, 2024 response, the City asserted, “[t]he Director of Public Facilities… has advised that he does not have records related to standards for temperature monitoring, cooling, control, adjustment, repair or general operations. He has obtained the following from The American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) which has several standards that provide temperature guidelines for different settings: [ASHRAE standards for thermal comfort and servers.]” Current Appeal In the appeal, the requestor states: [1] On 6/4/24 [the requestor] offered a significant reduction in scope in an effort to provide records more efficiently. The City reduced its fee demand to $423. Gathering and downloading records is merely the arrangement and organization of electronic records. Massachusetts guidelines indicate and communicate that activities involving arranging and organizing electronic records cannot be charged back to a requestor. [We] remain interested in these requested records, which we believe speak to the health and safety of the public in the use of [the City]’s buildings…. We believe these records should be freely available. Although the City has opined that the time to search the responsive documents for production results will take approximately 18.916 hours, and, less the 2 hours allowed by statute, will charge for 16.916 hours to process [the] request, it is unclear how much time, if any, is needed to segregate and redact the records. Additionally, the City has stated that it expects to require 5 minutes per unit to gather and download the requested data based on a two-unit sample set. However, it is unclear how the City extrapolated this sample set to the 227 units that are located across three locations. The City must provide additional information regarding the tasks involved and why it requires 5 minutes per each unit. Further, although the City indicates it will charge $25 per hour, it is unclear that this is the lowest rate for an employee capable of performing the work. Consequently, the City must explain whether its hourly rate is that of the lowest paid employee with the necessary skill. As such, the City must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Fee waivers In the appeal petition, the requestor states “[w]e believe these should be routinely and freely available to the public….” G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the

Carol Desiderio SPR24/1706 Page 4 June 21, 2024 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. 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) (emphasis added). I encourage the requestor and the City to communicate further in order to facilitate producing records efficiently and affordably. The City must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § 10(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). For the reasons discussed above, I find the City must revise its fee estimate or provide further explanation of how the $423.00 fee assessed in its June 6, 2024 estimate is consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the City is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. The requestor may appeal the City’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Malden News Network