Commonwealth Transparency v. Malden, City of - Office of the City Clerk (SPR 20242084)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 29, 2024 SPR24/2084 Carol Ann Desiderio City Clerk Records Access Officer 215 Pleasant Street, Room 220 Malden, MA 02148 Dear Ms. Desiderio: On July 22, 2024, this office received your petition on behalf of the City of Malden (City) seeking an extension of time to produce records, permission to charge for time spent segregating or redacting responsive records, and a waiver of statutory limits on fees that may be assessed in responding to the request. 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 City furnished a copy of this petition to the requestor, Commonwealth Transparency (“requestor”). Id. On July 8, 2024, the requestor sought an extract of data “provided in ONLY .CSV or .XLSX form” relating to “all email sent by and/or received by any electronic mail account for [an identified individual].” In making the request, the requestor specified the following: 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 request specifically includes ALL email accounts and addresses in your possession and/or under your control, including group and resource email addresses. Petitions 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: 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 Ann Desiderio SPR24/2084 Page 2 July 29, 2024 (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; (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) shall 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). Request for Additional Time to Produce Responsive Records In its petition, the City requests “an additional thirty (30) business days to respond to this request given the volume of records requested.” In support of its request for an extension, the City states that it “has already responded to approximately 80 public records requests sent by this Requestor since January 2024 alone” and notes that “[t]his particular request seeks . . . voluminous records with no limiting time period[.] The City explains that “the records requested require locating voluminous data and a review, for example, of over 150,000 lines of e-mail record information for [an identified City official] for a nine year period, including a necessary review for privileged and/or other confidential personnel information contained in such data logs[.]” The City goes on to state that it estimates it will “review for privilege at one page per minute . . . for a total estimated time of 79 hours after accounting for the first two hours at no charge.” I find that in light of the need to search for, collect, segregate and examine the records and efforts undertaken by the City in fulfilling the current request and previous requests, the City has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The City is granted an extension of 30 business days.

Carol Ann Desiderio SPR24/2084 Page 3 July 29, 2024 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 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). 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).

Carol Ann Desiderio SPR24/2084 Page 4 July 29, 2024 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). Request to Assess Fees for Segregation and Redaction In its petition, the City seeks to assess fees for segregation and redaction, and explains that the responsive records contain information that “may be withheld or redacted under any of the exemptions to the Public Records Law, other applicable provisions of law, and/or common law privileges, such as the attorney-client privilege” and provides the following information regarding its “anticipated bases for withholding[:]” Exemption (c) . . . given the broad nature of the records involving [an identified City official] and the sensitive legal and personnel information that may be contained in the records, the City will need to conduct an individualized review of the data requested in light of Exemption (c). . . . Exemption (d) . . . there may data contained in the records which relate to recommendations made and ongoing positions being developed by the City and [an identified City official] with respect to legal matters relating to the City matters, the premature disclosure of which could taint the deliberative processes or potential litigation involving the City. . . . Attorney-Client Privilege . . . to the extent that several responsive email data contained in the records requested may have been sent from or received by City officials, agents, and employees during the course of the City’s search for legal advice from the City Solicitor’s Office or other City attorneys in the attorneys’ capacity, which were made in confidence, and the privilege as to these communications has not been waived by any disclosure to some third party or otherwise, said emails may be withheld or redacted pursuant to the attorney-client privilege. In light of the City’s petition, I find the City 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 City may assess a fee for the segregation and redaction of such exempt material. Request for Waiver of Statutory Limits on Fees In its petition, the City seeks “a waiver of the statutory limit on fees that may be assessed in responding to the request.” Specifically, the City requests “that the statutory cap on fees for search, compilation, redaction, and reproduction time be waived, and that the City be authorized to assess fees for this work at the rate of $65.00/hour for the IT Director and $65.00/hour for the Records Access Officer[.]”

Carol Ann Desiderio SPR24/2084 Page 5 July 29, 2024 The City further asserts that there is good cause for granting its request for a waiver of statutory limits on fees where “the City’s IT Director and the City’s Records Access Officer are the lowest paid employees capable of (1) locating the responsive records and (2) reviewing all such records for necessary redactions for attorney-client privilege, attorney-client work product, and other related legal and policy considerations, respectively.” Additionally, the City explains that “the City’s IT Director is the only employee capable of locating the responsive records and obtaining such information from the City’s servers” and that “the only other individuals other than Records Access Officer who may be capable of reviewing such records . . . to determine the scope of appropriate exemptions, privileged communications, and privacy interests utilizing . . . is the Chief Strategy Officer . . . or the City Solicitor.” The City notes that “[t]he Chief Strategy Officer’s hourly rate is $90/hour” and that the City is “willing to reduce any such rate to the Records Access Officer rate at $65.00/hour in the public’s interest and as a showing of good faith that [its] petition is by no means meant to deter or discourage the provision of requested records.” Based on the City’s petition, I find the City has not met its burden to explain how the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). The City may assess an hourly rate limited to $65.00 for attorney review for segregation and redaction under the attorney-client privilege and attorney-client work product. However, the City may not assess a fee in excess of $25.00 per hour for other tasks. G. L. c. 66, § 10(d)(iii). Conclusion Accordingly, I find the City has established good cause for a time extension of 30 business days as described above. Additionally, to the extent the responsive records contain the exempt information described above, the City may assess a fee for segregation and redaction. Further, while the City may assess a fee limited to the hourly rate of $65.00 for attorney review, the City may not assess a fee in excess of $25.00 for other tasks, as described above. This office encourages the requestor and the City to continue to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). Any subsequent fee estimate from the City must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). 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).

Carol Ann Desiderio SPR24/2084 Page 6 July 29, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency