Commonwealth Transparency v. Malden, City of - Office of the City Clerk (SPR 20241947)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 23, 2024 SPR24/1947 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 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 June 27, 2024, the requestor sought, for the time period January 2019 through June 27, 2024, “… all emails (To: or From:) [an identified individual] and any City … email address including but not limited to the City …, Malden Public Schools and the Malden Police Department.” Previous petition This request was the subject of a previous petition. See SPR24/1944 Determination of the Supervisor of Records (July 12, 2024). In my July 12, 2024 determination, I found that the City had met its burden to assess a fee for segregation and redaction made under Exemption (c) of the Public Records Law. The City responded on July 9, 2024 providing a fee estimate to produce responsive records. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR24/1947, 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, § 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 A. Desiderio SPR24/1947 Page 2 July 23, 2024 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. Att’y 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. 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 how if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). The City’s July 9th fee estimate In its July 9, 2024 fee estimate, the City identified approximately 1,623 emails and attachments responsive to the request and cited a fee estimate of $1,528.13 as follows: The records sought in the request need to be reviewed, and potentially redacted. The City seeks the ability to charge for redactions under Exemption C. These documents require redactions in accordance with the exemption set for at G.L. c. 4 § 7(26)(c)…. Records responsive to your request will thus need to be reviewed and redacted to the extent they contain private email addresses and contact information concerning an applicant for a license, which are sensitive to them,

Carol A. Desiderio SPR24/1947 Page 3 July 23, 2024 such as home address, social security number, passport etc…. 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)(l), the requester 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 must be reviewed to determine if an exemption applies. Segregation time “includes the time used to review records to determine what portions are subject to redaction or withholding under G. L. c. 4 section 7(26) or other legally applicable privileges.” Redaction time includes the time to delete, or otherwise remove that part of a public record that is exempt from disclosure under G. L. c. 4, § 7(26) or other legally applicable privileges from non-exempt materials. The City estimates it will take 30 seconds per page to segregate and redact the email. As a result, the City estimates a total of 63.125 hours. After subtracting the first two (2) hours, 61.125 hours for segregation and redaction at the rate of $25 per hour, yields a total fee estimate of $1528.13. Although the City has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 63.125 hours of employee time, it is unclear how the City requires this many hours to produce responsive records. Particularly, where the City states “a sample was made, and the actual time was 20 minutes for one application … [and] 5 minutes for one document [or attachment,]” it is uncertain how the City requires this much time to redact the applications and attachment documents. Additionally, it is uncertain how many

Carol A. Desiderio SPR24/1947 Page 4 July 23, 2024 pages there are for each application and attachment document. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The City must clarify. For the reasons discussed above, I find the City must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and 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: Commonwealth Transparency