Commonwealth Transparency v. Malden, City of - Public Schools (SPR 20242039)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 24, 2024 SPR24/2039 Shirley Dorai Records Access Officer Malden Public Schools 110 Pleasant Street Malden, MA 02148 Dear Ms. Dorai: On July 17, 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, Open Commonwealth. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On July 2, 2024, the requestor sought “[e]xtract the author and all recipients (To:, Cc:, and/or Bcc:), date, and subject heading of all email sent or received by [a specified email address]. This request 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 request specifically requests that the export be provided in only .CSV or .XLSX form.” Petition 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

Shirley Dorai SPR24/2039 Page 2 July 24, 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). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current Petition In its petition, the School requests “an additional 30 business days beyond the time specified under the statute” and provides the following information in support of its request: [G]iven the broad scope of the request and the volume of potentially responsive records which require detailed review and redaction, the District submits that it is not reasonable to require it to produce the responsive records within 10 business days. … [A]dditionally, the employee who will perform the search and recovery, segregation and redaction process has many other responsibilities which they cannot ignore. The District 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 capacity of the School to produce the records without an extension, the School has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The School 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

Shirley Dorai SPR24/2039 Page 3 July 24, 2024 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). 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 SPR24/2039 Page 4 July 24, 2024 Petition to Assess Fees In its petition, the School requests “the ability to charge for redactions under Exemption (c)” and provides the following in support of its request: [F]irst, 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. … [S]econd, the records contain personal identifying information of public school students. … [F]inally, these documents require redactions in accordance with the exemption set for at G.L. c. 4, § 7(26)(c). In accordance with the exemption, the District needs to review and redact the documents to the extent they contain information concerning employees that relate to performance or complaints, evaluations of employees, request for accommodations, leaves of absences, and discipline of employees. In an email to this Division on July 22, 2024, the requestor objects to the School’s petition to assess fees, arguing “… [t]he [School] has violated FERPA, and has egressed student and educational records from the Malden Public Schools into the City of Malden against federal student privacy laws…[t]here should be no legitimate reason to redact any of the records requested and thus no need to segregate. Finally, [the School] requests a minute to review a maximum of 80 characters in a subject line and a maximum of 255 characters of a file name of an attachment, organized in a spreadsheet, 1 minute is an exorbitant overstatement of the time required to do this. Further it is unclear how a subject of an email or a file name of an attachment could possibly meet the attorney-client privilege requirement under the codified law and considering the current case law.” In light of the School’s petition, I find the School 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 exempt information as described above, the School may assess a fee for the segregation and redaction of such exempt material. Conclusion As described above, I find that the School has established good cause for a time extension of 30 business days. Accordingly, I find the School has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the School may assess a fee for segregation

Shirley Dorai SPR24/2039 Page 5 July 24, 2024 and redaction. Further, I encourage the parties to communicate further to enable the School to provide records in an efficient and affordable manner. 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: Open Commonwealth