Commonwealth Transparency v. Malden, City of - Public Schools (SPR 20242080)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 5, 2024 SPR24/2080 Timothy Sippel Superintendent Malden Public Schools 215 Pleasant Street Malden, MA 02148 Dear Superintendent Sippel: I have received the petition of Commonwealth Transparency (“requestor”) appealing the response of the Malden Public Schools (School/District) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). 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.” Prior Petition This request was the subject of a prior petition. See SPR24/2039 Determination of the Supervisor of Records (July 24, 2024). In my July 24th determination, I found that the School had established good cause for a time extension of 30 days and that the School had met its burden to assess a fee for segregation and redaction. The School responded on July 17, 2024, providing a fee estimate. Unsatisfied with the School’s response, the requestor petitioned this office and this appeal, SPR24/2080, 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 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

Superintendent Timothy Sippel SPR24/2080 Page 2 August 5, 2024 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 estimate – 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 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). The School’s July 17th Response In its July 17, 2024 response, the School provided a fee estimate of $286.50 and stated the following: A search was conducted which yielded 8,073 emails for all emails sent or received by [a specified email address]. The author, recipients, date, and subject heading of each email (but not the body or attachments) sent or received was extracted produced 8,073 rows of data.

Superintendent Timothy Sippel SPR24/2080 Page 3 August 5, 2024 … 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… Second, the records contain personal identifying information of public school students… 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… 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. Each row of the records [the requestor] seek[s] must be reviewed to determine which exemption or privilege applies… The District estimates that it will take one minute per 10 rows of the email extracts to segregate and redact them. In total, there are 8,073 rows of email extracts. As a result, the District estimates a total of 13.46 hours for the email extracts. This estimate was based on a review of the spreadsheet and the items that would need to be redacted. [The requestor] will not be charged for the first two hours. 11.46 hours for segregation and redaction at the rate of $25 per hour, yields a total fee estimate of $286.50. The actual fee to produce these records may vary based on the actual time spent to complete the necessary review and redaction process. The District will not begin to review the records [the requestor] seek[s] until it receives a check in the amount of $286.50. Current Appeal In his appeal petition, the requestor states the following: In their response, The RAO for Malden Public Schools indicates: “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. “ OpenCommonwealth is currently gathering public records that dispute the claim, and of the date of this request, Malden has provided many records which indicate

Superintendent Timothy Sippel SPR24/2080 Page 4 August 5, 2024 that [a named individual] in his capacity in the City of Malden does not and has not directly communicated with any law firm representing Malden Public Schools. We seek this very information; we are entitled to these public records and the public’s right to know how our government is operating. Then in their response, The RAO for Malden Public Schools states: “Second, the records contain personal identifying information of public school students.” If this information is accurate, the City of Malden 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. OpenCommonwealth would be not only surprised, but shocked if FERPA protected information has in fact egressed Malden Public Schools Firewall and believes this is a tactic deployed by the City and the Malden Public Schools to attempt to thwart and frustrate public records requests and requestors. There should be no legitimate reason to redact any of the records requested and thus no need to segregate. Finally, Malden 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 this case, where the School has explained that it will charge for segregation and redaction of the records, and has explained the amount of time required to segregate and redact records, the amount of time per page that it will take to review and redact the records, and confirmed that the lowest paid individual with the necessary skill is paid more than $25 per hour, I find the School has met its burden to establish that it would take this amount of time to prepare the responsive records for production. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). I encourage the requestor and the School to communicate in order to facilitate producing records efficiently and affordably. The requestor may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. 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.

Superintendent Timothy Sippel SPR24/2080 Page 5 August 5, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency