Commonwealth Transparency v. Malden, City of - Public Schools (SPR 20242095)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 6, 2024 SPR24/2095 Superintendent Timothy Sippel Records Access Officer Malden Public Schools 110 Pleasant Street Malden, MA 02148 Dear Superintendent Sippel: I have received the petition of Open Commonwealth (“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 9, 2024, the requestor sought the following: Please extract the author and all recipients (To:, Cc:, and/or Bcc:), date, and subject heading of all electronic communications between (To:, From:, Cc:, Bcc:) any Malden (including but not limited to @maldenps.org and @cityofmalden.org) email account and any email address in the @nrtbus.com FQDN. This request includes but is not limited to emails and calendar entries. 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 Previous Petition This request was the subject of a previous petition from the School. See SPR24/2085 Determination of the Supervisor of Records (July 29, 2024). In my July 29th 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, on July 22, 2024, the School responded to the request, providing a fee estimate. Objecting to the fees, the requestor petitioned this office, and this appeal, SPR24/2095, was opened as a result. 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 SPR24/2095 Page 2 August 6, 2024 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). The School’s July 22nd Fee Estimate In its July 22, 2024 response, the School provides a total fee estimate of $811.25. In support of its fee estimate, the School provides the following information:

Superintendent Timothy Sippel SPR24/2095 Page 3 August 6, 2024 A search was conducted which yielded 18,861emails between (To:, From:, Cc:, Bcc:) any @maldenps.org email account and any email address in the @nrtbus.com FQDN. Another search was conducted for emails between (To:, From:, Cc:, Bcc:) any @cityofmalden.org email account and any email address in the @nrtbus.com FQDN which yielded 459 emails. The emails total 19,320. There were also 3,378 attachment titles found for the @maldenps.org email account and any email address in the @nrtbus.com FQDN. Please note that the email system used by @cityofmalden.org 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. . . . The records ... 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. . . . Second, the records contain personal identifying information of public school students. ... 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. . . . 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 ... 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 19,320 rows of email extracts and 3,378 attachment titles.

Superintendent Timothy Sippel SPR24/2095 Page 4 August 6, 2024 As a result, the District estimates a total of 32.20 hours for the email extracts and 2.25 hours for the attachment titles which totals 34.45 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. 32.45 hours for segregation and redaction at the rate of $25 per hour, yields a total fee estimate of $811.25. Please be advised the School previously received approval to charge for segregation and redaction, to the extent the responsive records contain the exempt information. See SPR24/2085 Determination of the Supervisor of Records (July 29, 2024). In light of the information provided in the School’s July 22nd fee estimate, I find the School has met its burden to establish that it will take this amount of time to segregate or redact the 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: Open Commonwealth