Commonwealth Transparency v. Malden, City of - Public Schools (SPR 20241915)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 11, 2024 SPR24/1915 Shirley Dorai Records Access Officer Malden Public Schools 110 Pleasant Street Malden, MA 02148 Dear Ms. Dorai: On July 3, 2024, this office received your petition on behalf of the Malden Public Schools (School/District) seeking an extension of time to produce records and requesting permission to assess fees for time spent segregating and redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the School furnished a copy of the petition to the requestor, Commonwealth Transparency. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On April 8, 2024, the requestor sought the following: [D]ocuments/records in the possession or under the control of your school/district or town/city for the time period, January 1, 2018 through April 5, 2024: [1] Any and all electronic calendars of [a named individual] including draft and deleted items[;] [2] Any and all electronic calendars of [a named individual], including draft and deleted items, including draft and deleted items which includes the following words/cities/school districts: Arlington [Massachusetts], Bedford [Massachusetts], Georgetown [Massachusetts], Middleton [Massachusetts], Salem [Massachusetts], Ipswich [Massachusetts], Winchendon [Massachusetts]. Subsequently on April 15, 2024, the requestor modified the scope of the request. In the April 15th modified request, the requestor sought the same records as the April 8th request but for the period of “January 1, 2018 through April 15, 2024[.]” 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 SPR24/1915 Page 2 July 11, 2024 Previous Appeals This request was the subject of previous appeals. See SPR24/1110 Determination of the Supervisor of Records (April 19, 2024); SPR24/1323 Determination of the Supervisor of Records (May 14, 2024); SPR24/1545 Determination of the Supervisor of Records (June 5, 2024); and SPR24/1700 Determination of the Supervisor of Records (June 20, 2024). In my June 20th determination, I ordered the City to provide a good faith estimate for the production of the additional records from April 5, 2024 – April 15, 2024 per the modified request. Petition to assess fees – Municipalities The Supervisor may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my understanding that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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).

Shirley Dorai SPR24/1915 Page 3 July 11, 2024 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). Conclusion The School submitted its petition on July 3, 2024, more than twenty business days after receipt of the request. In light of the fact the School has not demonstrated it submitted a timely petition, an extension of time cannot be granted. 950 C.M.R. 32.06(4)(d). To the extent possible, the School must provide responsive records on a rolling basis. Accordingly, in light of the fact the School has not demonstrated that it submitted its petition within ten business days after receipt of the request, permission to charge for segregation or redaction that is not required by law cannot be granted. 950 C.M.R. 32.06(4)(g). Please note, however, this determination does not preclude the School from charging for segregation and redaction that is required by law. Sincerely, Manza Arthur Supervisor of Records cc: Open Commonwealth