Commonwealth Transparency v. Malden, City of - Office of the City Clerk (SPR 20241863)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 12, 2024 SPR24/1863 Carol Ann Desiderio City Clerk City of Malden 215 Pleasant Street Malden, MA 02148 Dear Ms. Desiderio: I have received the petition of Commonwealth Transparency (“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 April 24, 2024, the requestor sought “electronic communications of [a named individual]” from a period of November 1, 2019 to December 31, 2019, containing various keywords and for a period of July 1, 2024 through October 31, 2020 containing a different set of keywords. Prior Petition This request was the subject of a prior petition. See SPR24/1405 Determination of the Supervisor of Records (May 15, 2024). In my May 15th determination, I found that the City had established a good cause for a time extension of 30 business days and that the City had met its burden to explain how the response could not be prudently completed without redaction or segregation based on the above. However, I was unable to grant relief from the obligation to produce responsive records. The City responded on June 21, 2024, providing records. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR24/1863, 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 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 Ann Desiderio SPR24/1863 Page 2 July 12, 2024 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. The City’s June 21st Response In its June 21, 2024 response, the City provided records. Subsequent to the opening of this appeal, on July 3, 2024, the City provided an additional response and stated the following: [The requestor] appeals on several grounds. First, he claims only 263 of the 350 emails were responsive and only 350 emails were provided. Second, he disputes the redactions. Finally, he disputes the format they were provided. … First, I am attaching the search that Malden did and the certification from the IT person on the counts for the emails. When providing the documents, Malden removed duplicates as much as possible. The original count included all the times [a named individual]’s email came up with the terms. If other employees from Malden received the email, it would have shown up twice in our count. There is no way to stop that from occurring except by going through the emails by hand when producing the records. Second, it is not true that the emails were redacted improperly or not redacted for attorney-client privilege. There were emails with [a named individual], which were redacted for attorney-client privilege. Those emails were confidential emails between the district and its counsel and the district has not waived the privilege. [The requestor] does not state why he believes the other emails were improperly redacted. The fact that emails were redacted for student record information does not mean there is in-camera review automatically. He does not provide any other information to support why he believes the redactions were improper. Malden redacted account numbers, private email addresses and home addresses under Exemption C. It redacted information on student records under Exemption A. Third, [the requestor] disputes that the documents were provided in pdfs. Malden

Carol Ann Desiderio SPR24/1863 Page 3 July 12, 2024 had to convert them to pdfs to do the redactions. It could not provide as an original email file because then it would not be able to redact the documents, which by law it is required to do. There was no obligation for Malden to sort the documents by date or provide them in a particular way to [the requestor]. Finally, Malden provided all the records that existed. It is not required to do more. Current Appeal In the appeal petition, the requestor states the following: There were 127 total redactions on 40 of the 263 responsive emails. Zero of the redacted emails are attorney-client privileged. Seven of the redacted emails potentially contain FERPA information and require the SPR to review in-camera. Thirty-three of the redacted emails are improperly redacted and require the SPR to review in-camera. … On this occasion, like in the past, Malden purposefully and intentionally inflated the number of responsive records. Malden produced 10% of the number of claimed emails. It claimed over ten times the number of actual responsive records (263 actual versus 2669 claimed). Malden has claimed attorney-client privilege with no basis to do so and has not provided a single responsive record which can be exempted under attorney-client privilege. Malden has improperly redacted responsive records. … OpenCommonwealth requests that the SPR find and Order Malden to perform a diligent search for all responsive records, including those from the tmertz@cityofmalden.org account. Malden should be ordered to provide all responsive records with attachments and metadata in the form that they are regularly kept… In response to the City’s July 3rd email, the requestor states, “[o]f the 263 emails provided which were actually responsive, only a fraction of those emails were actually redacted, the remainder were not provided consistently with the request nor with the law as the records in the format how they are ‘regularly maintained.’” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a).

Carol Ann Desiderio SPR24/1863 Page 4 July 12, 2024 A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Family Educational Rights and Privacy Act (FERPA) In its response, the City referenced the Family Educational Rights and Privacy Act (FERPA) as applicable to redact the requested records or information. “Education records” under FERPA are defined as: those records, files, documents, and other materials which contain information directly related to a student; and are maintained by an educational agency or institution or by a person acting for such agency or institution 20 U.S.C. § 1232g(a)(4)(i-ii). FERPA defines “personally identifiable information” as including, but not limited to: The student’s name; (b) The name of the student’s parents or other family member; (c) The address of the student or student’s family; (d) A personal identifier, such as the Student’s social security number, student number, or biometric record; (e) Other indirect identifiers, such as the student’s date of birth, place of birth, and mother’s maiden name; (t) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or (g) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates. 34 C.F.R. § 99.3.

Carol Ann Desiderio SPR24/1863 Page 5 July 12, 2024 Massachusetts Student Records Regulations Additionally, in its response, the City cites 603 C.M.R. 23.00 et seq. Please note that 603 C.M.R. 23.02 defines “student record” as follows: Student Record shall consist of the Transcript and the Temporary Record, including all information--recording and computer tapes, microfilm, microfiche, or any other materials--regardless of physical form or characteristics concerning a student that is organized on the basis of the student’s name or in a way that such student may be individually identified, and that is kept by the public schools of the Commonwealth. The term as used in 603 CMR 23.00 shall mean all such information and materials regardless of where they are located, except for the information and materials specifically exempted by 603 CMR 23.04. 603 C.M.R. 23.02 (emphasis in original). Additionally, 603 C.M.R. 23.07(4) provides in pertinent part: Access of Third Parties. Except for the provisions of 603 CMR 23.07(4)(a) through 23.07(4)(h), no third party shall have access to information in or from a student record without the specific, informed written consent of the eligible student or the parent. 603 C.M.R. 23.07(4). In its response, the City also cites G. L. c. 71, §§ 34A to 34H. G. L. c. 71, § 34A states the following: Any person operating or maintaining an educational institution within the commonwealth shall, upon request of any student or former student thereof, furnish to him a written transcript of his record as a student. There shall be no charge for any transcript originally furnished by any such person hereunder, but for any duplicate or additional transcript furnished hereunder a charge of not exceeding one dollar for each page, but not exceeding five dollars for an entire transcript, may be made by such person. G. L. c. 71, § 34A. In its response, under the statutes and regulations cited above, the City states that “… communication between [the City] and legal counsel contain personal identifying information of public school students who enjoy mandated confidentiality; indeed, such documents, if released, would reveal the identities, disabilities and information on their educational programming. Further, since legal counsel is counseling [the City] on the educational services and programming that is providing to students, especially special education students these records should be deemed exempt from Public Records Law disclosure under Exemption (a) because, as

Carol Ann Desiderio SPR24/1863 Page 6 July 12, 2024 supported by Champa, state and federal regulations compel the [the City] to protect educational records from disclosure. Specifically, they are protected by the Federal Education Rights Privacy Act, Massachusetts General Law, Chapter 71, Section 34A to 34H, and 603 CMR 23.00.” Additionally, in its response on July 3, 2024, the City states, “[the City] redacted information on student records under Exemption A.” Based on the City’s response, it is unclear what information has been redacted from the responsive records, and how the redacted information constitutes the type of information described in the above statutes or regulations. The City must clarify these matters. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292.

Carol Ann Desiderio SPR24/1863 Page 7 July 12, 2024 Under Exemption (c), the City states, “[r]ecords responsive to [the requestor’s] 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.” Further, the City states in its July 3rd response, “Malden redacted account numbers, private email addresses and home addresses under Exemption C.” To the extent the records contain account numbers and private email addresses, the City may permissibly withhold such portions from disclosure under Exemption (c). However, the City has not demonstrated that home addresses are intimate details of a highly personal nature or that the disclosure of such information would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether this information is available from other sources. PETA, 477 Mass. at 292. Also, the City did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the information outweighs the seriousness of any invasion of privacy. The City must clarify these matters. Common law attorney-client privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2017); see also Hanover Ins. Co. v. Rapa & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records “shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). Under the attorney-client privilege, the City stated, “[t]here were emails with [an identified attorney], which were redacted for attorney-client privilege. Those emails were confidential emails between the district and its counsel and the district has not waived the privilege.” In this case, although portions of the emails were redacted, the City has left intact the information required under G. L. c. 66, § 10A(a), including the dates, the names of the author

Carol Ann Desiderio SPR24/1863 Page 8 July 12, 2024 and recipients, and information regarding the subject of each entry. In its July 3rd email, the City has satisfied the requirements that the communications were received from an attorney during the course of the City’s search for legal advice from the attorney in his or her capacity as such, that the communications were made in confidence, and that the that the privilege as to these communications has not been waived. No Duty to Create Records Please be advised, under the Public Records Law the City is not required to create a record in response to the request. See G. L. c. 66, § 6A(d). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, §10(a)(ii). Additionally, please note that under the Public Records Law, a public employee is not required to answer questions, do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Based upon a conversation between a Public Records Division staff member and a City representative, the City confirmed that it has no additional records responsive to the request. Preferred Format A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). In its July 3rd response, with regard to providing the records in a preferred format, the City stated, “[the requestor] disputes that the documents were provided in pdfs. Malden had to convert them to pdfs to do the redactions. It could not provide as an original email file because then it would not be able to redact the documents, which by law it is required to do. There was no obligation for Malden to sort the documents by date or provide them in a particular way to [the requestor].” Where the City has provided the responsive records and has explained that it is unable to provide the responsive records in the requestor’s preferred format, I find the City has met its burden under G. L. c. 66, § 6A(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.

Carol Ann Desiderio SPR24/1863 Page 9 July 12, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency Shirley Dorai Felicia S. Vasudevan, Esq.