Commonwealth Transparency v. Malden, City of - Public Schools (SPR 20242082)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 5, 2024 SPR24/2082 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 3, 2024, the requestor sought “[f]or the time period July 1, 2019 through July 3, 2024, please provide all electronic communications between [two identified individuals]…” Prior Petition This request was the subject of a prior petition. See SPR24/2046 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, SPR24/2082, 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). 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 SPR24/2082 Page 2 August 5, 2024 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 $487.50 and stated the following: The District is in possession of approximately 1,290 emails and attachments that are responsive to [the requestor’s] request. … 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

Superintendent Timothy Sippel SPR24/2082 Page 3 August 5, 2024 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 page 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 email to segregate and redact the email. As a result, the District estimates a total of 21.5 hours. [The requestor] will not be charged for the first two hours. 19.5 hours for segregation and redaction at the rate of $25 per hour, yields a total fee estimate of $487.50. 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 $487.50. 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. “ The City has failed to prove the most basic and first element of their claim, that there is an attorney client privilege between [named individuals]. This is impossible, as neither is an attorney. It is not possible for communications between [named individuals] to be privileged. Further, if the communications include otherwise confidential attorney-client communications, the privilege is waived. 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.

Superintendent Timothy Sippel SPR24/2082 Page 4 August 5, 2024 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[.] … Wherefore, 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. No more and no less was requested in this public records request. Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). 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 how 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). With regard to the requestor’s objections regarding the School’s claims of exemptions and the attorney-client privilege, please be advised that where the School has yet to produce the records, I find these matters cannot be addressed at this time, as the contents of these records are unclear. Once records are provided, the requestor may appeal the substantive nature of the School’s response within ninety calendar days. See 950 C.M.R. 32.08(1).

Superintendent Timothy Sippel SPR24/2082 Page 5 August 5, 2024 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 Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency