Commonwealth Transparency v. Malden, City of - Office of the City Solicitor (SPR 20241944)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 12, 2024 SPR24/1944 Alicia A. McNeil, Esq. City Solicitor City of Malden 215 Pleasant Street, Suite 420 Malden, MA 02148 Dear Attorney McNeil: On July 9, 2024, this office received your petition on behalf of the City of Malden (City) seeking an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, the City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On June 27, 2024, Commonwealth Transparency (“requestor”) requested, “all emails between. . . [an identified email address] and any City of Malden email address including but not limited to the City of Malden, Malden Public Schools, and The Malden Police Department” from “January 1, 2019 through June 27, 2024[.]” Please note that in an email to this office and the City on July 9, 2024, the requestor objected to the City’s petition. Specifically, the requestor contested the City’s request for permission to charge for time spent segregating or redacting responsive records. Petitions for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; 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

Alicia A. McNeil, Esq. SPR24/1944 Page 2 July 12, 2024 (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). Current Petition In its July 9th petition, the City “requests an additional 30 business days… to respond to the request.” In support of its request, the City estimates that it “is in possession of approximately 1623 emails and attachments that are responsive to [the] request” and further explains: Given the broad scope of the request and the volume of potentially responsive records which require detailed review and redaction, the City submits that it is not reasonable to require it to produce the responsive records within 10 business days. Therefore, the City hereby petitions for an extension of time to respond to the request, given that the scope of redaction required to prevent unlawful disclosure is significant. Additionally, the employee who will perform the search and recovery, segregation and redaction process have many other responsibilities which they cannot ignore. The City will be unable to complete its review, redaction, and production of records during normal business hours of operation without an extension In light of the need to collect, segregate and examine the records, as well as the scope of redaction required to prevent unlawful disclosure, the capacity of the City to produce the request without the extension, and the efforts undertaken by the City in fulfilling the current request, the City has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The City is granted an extension of 30 business days. 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

Alicia A. McNeil, Esq. SPR24/1944 Page 3 July 12, 2024 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 determination that the request is not 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 (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 under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 10 C.M.R. 32.06(4). Current Petition In its petition, the City “requests… to charge a fee of $25 per hour to produce and redact [the] records[.]” In support of its request, the City advises that the individual whose email address is identified in the request “is a member of the City’s Licensing Board” and explains, “the responsive records contain documents that would qualify under Exemption (c) of the Public Records Law. . . .” The City further states that the responsive records “thus need to be reviewed and redacted to the extent they contain private email addresses and contact information and information concerning an applicant for a license, which are sensitive to them, such as home address, social security number, passport etc.” In light of the City’s petition, I find the City has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the

Alicia A. McNeil, Esq. SPR24/1944 Page 4 July 12, 2024 exempt information as described above, the City may assess a fee for the segregation and redaction of such exempt material. Conclusion Accordingly, it is my determination that the City has established good cause for a time extension of 30 business days as described above. Further, to the extent the responsive records contain the exempt information described above, the City may assess a fee for segregation and redaction. Please note, the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely Manza Arthur Supervisor of Records cc: Commonwealth Transparency