Commonwealth Transparency v. Malden, City of - Public Schools (SPR 20242021)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 29, 2024 SPR24/2021 Shirley Dorai Records Access Officer Malden Public Schools 100 Pleasant Street Malden, MA 02148 Dear Ms. Dorai: I have received the petition of Open Commonwealth (“requestor”) appealing the response of the Malden Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 1, 2024, the requestor sought the following records: From 1/1/2019 through 7/1/2024, please extract the author and all recipients (To:, Cc:, and/or Bcc:), date, and subject heading of any email (but not the body or attachments) sent or received by any address@cityofmalden.org and/or @maldenps.org (thus search both email systems), where any address @mhtl.com appears as an author or recipient (To:, Cc:, and/or Bcc:). This requests specifically seeks, the To:, From:, Cc:, and Bcc: address fields, the Date and Time that the message was sent and/or received, the subject of the email and whether or not there was an attachment, and if there was an attachment, the full name of the attachment. This requests specifically requests that the export be provided in ONLY .CSV or .XLSX form. The School responded on July 15, 2024, providing a fee estimate. Objecting to the fees, the requestor petitioned this office, and this appeal, SPR24/2021, was opened as a result. Previous Petition This request was the subject of a previous petition from the School. See SPR24/2019 Determination of the Supervisor of Records (July 22, 2024). In my July 22nd determination, I found that the School established good cause for a time extension of 30 business days, and that the School may assess a fee for segregation and redaction. Concurrent with its petition, the School responded to the requestor on July 15, 2024, providing a fee estimate. Objecting to the 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 SPR24/2021 Page 2 July 29, 2024 fees, the requestor petitioned this office, and this appeal, SPR24/2021, 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, § 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. 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 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).

Shirley Dorai SPR24/2021 Page 3 July 29, 2024 Current Appeal In their appeal petition, the requestor contends the following: OpenCommonwealth requests that the SPR find and Order that Malden provide the records identified in their search, as the records sought cannot be withheld; they cannot be charged for because there is no attorney-client privilege that can be claimed in the email header information specifically requested and specifically limited to in this public records request of the date, sender, recipients, and subjects of the communication and attachments. The School’s July 15th Fee Estimate In its July 15, 2024 response, the School provides a total fee estimate of $480.50, and provides the following information in support of its fee estimate: A search was conducted which yielded 7,656 emails for any address @maldenps.org where any address @mhtl.com appears as an author or recipient from 1/1/2019 through 7/1/2024. The author, recipients, date, and subject heading of each email (but not the body or attachments) sent or received was extracted produced 7,656 rows of data. A separate search was conducted for any attachments for these emails 7,656 emails and 4,799 attachment titles were found. A search was conducted which yielded 3,154 emails for any address @cityofmalden.org where any address @mhtl.com appears as an author or recipient from 1/1/2019 through 7/1/2024. The author, recipients, date, and subject heading of each email (but not the body or attachments) sent or received was extracted which produced 3,154 rows of data. Please note that because of the different email system used by @cityofmalden.org, the system does not allow the extraction of attachment titles only. In order to provide the attachment titles, the entire email needs to be produced, which will require review and redactions. Since the request was just for attachment titles and not the entire email and attachment, the district is unable to provide extraction of attachment titles for @cityofmalden.org emails. . . . The records you seek need to be reviewed, and potentially redacted, for several reasons. First, these records likely contain the content of discussions between the District and its attorneys, for purpose of obtaining legal advice, which has not been shared with the public and is therefore protected by the attorney-client privilege. ... Accordingly, the records will need to be reviewed to determine if they contain information protected by the attorney-client privilege and then any necessary redactions will need to be made.

Shirley Dorai SPR24/2021 Page 4 July 29, 2024 Second, the records contain personal identifying information of public school students. ... [C]ommunication between the District 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 District 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 supported by Champa, state and federal regulations compel the District 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 et. seq. At the very least, the records will need to be reviewed to determine if they contain any student information, and then any necessary redactions will need to be made. Finally, the responsive records may include personnel record information or private personal information which is not subject to disclosure pursuant to Exemption (c) to the Public Records Law. ... Records responsive to [the] 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. As noted previously, the District will petition to charge a fee to redact under this exemption. . . . 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)(1), you 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. . . . The District estimates that it will take one minute per 10 rows of the email extracts to segregate and redact them. The District also estimates that it will take one minute per 25 rows of the attachment extracts to segregate and redact them. In total, there are 10,810 rows of email extracts and 4,799 attachment titles. As a result, the District estimates a total of 18.02 hours for the email extracts and 3.20 hours for the attachment titles which totals 21.22 hours. This estimate was based on a review of the spreadsheet and the items that would need to be redacted. You will not be charged for the first two hours. 19.22 hours for segregation and redaction at the rate of $25 per hour, yields a total fee estimate of $480.50. In this case, the School has confirmed that it is not charging for the first two hours of work, has confirmed that it is charging less than the hourly rate of the lowest paid employee with

Shirley Dorai SPR24/2021 Page 5 July 29, 2024 the necessary skills, and has explained why it requires the amount of time described in its fee estimate to segregate and redact the records. Further, the School previously received approval to charge for segregation and redaction not required by law. See SPR24/2019 Determination of the Supervisor of Records (July 22, 2024). Consequently, in light of the School’s July 15th response, I find the School has met its burden to explain how it has provided a reasonable fee estimate for the production of records responsive to this request. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). Conclusion As set forth above, I find the School has met its burden in responding to the request at this time. Any revision to the request would result in the requirement to issue a revised fee estimate. Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Shirley Dorai Felicia S. Vasudevan, Esq. Carol A. Desiderio