Commonwealth Transparency v. Malden, City of - Public Schools (SPR 20242135)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 8, 2024 SPR24/2135 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 SPR24/2128 Determination of the Supervisor of Records (August 2, 2024). Subsequently, SPR24/2128 was opened for reconsideration on August 2, 2024. A determination on the reconsideration we will be issued within 15 business days. The School responded on July 26, 2024, providing a fee estimate. Unsatisfied with the School’s response, the requestor petitioned this office and this appeal, SPR24/2135, 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 SPR24/2135 Page 2 August 8, 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 26th Response In its July 26, 2024 response, the School provided a fee estimate of $1,530.50 and stated the following: A search was conducted for @maldenps.org emails which yielded 42,240 emails and 9,706 attachments. The search conducted for @cityofmalden.org emails yielded 3,278 emails. In total, there are 45,518 emails.…

Superintendent Timothy Sippel SPR24/2135 Page 3 August 8, 2024 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… Records responsive to your request will thus need to be reviewed and redacted to the extent they contain private email addresses. As noted previously, the District will petition to charge a fee to redact under this exemption. 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 12 rows of the email extracts to segregate and redact them because the extract does not include the subject headings of each email. In total, there are 45,518 rows of email extracts. As a result, the District estimates a total of 63.22 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. 61.22 hours for segregation and redaction at the rate of $25 per hour, yields a total fee estimate of $1,530.50. 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 $1,530.50. Current Appeal In his appeal petition, the requestor states the following: Malden cannot point to any codified law, nor to any case law that indicates any email address is exempt under public records law. OpenCommonwealth directly challenges this premise and can demonstrate that the email addresses Malden looks to redact are indeed found on the internet, and via a simple Google or Bing or MX Record search. … Malden also failed to indicate in their response if any attachment was attached to the electronic mail. Wherefore OpenCommonwealth directly challenges the response of Malden, the very idea that any email address can be redacted under Exemption C, and that

Superintendent Timothy Sippel SPR24/2135 Page 4 August 8, 2024 Malden continues to attempt to hide and secrete public records. Subsequent to the opening of this appeal, on August 6, 2024, the requestor stated the following: Malden fails to assert, claim, or otherwise prove that any email addresses they intend to segregate and/or redact are “Unpublished”. Conversely, nearly all if not all “private” email addresses can be found from other sources, namely the internet, where all email addresses are used. Email addresses are public records and do not fall under any of the specified exceptions listed in Massachusetts Public Records Law. The email addresses Malden seeks to segregate and redact is widely publicly disclosed and voluntarily and readily sent to Malden officials at an address on the Malden’s email systems to discuss public business and an email, by its very creation or receipt on said municipal email system, creates a public record. Moreover, it is the context in which the information appears that is important to the analysis, that is- a member of the public, identified by name and email address, communicating with a Malden employee about public business, where the is no expectation of privacy. There is no evidence of harm if this information is disclosed. There is no alleged or demonstrated intent to use the names for commercial purposes or to contact the members of the public… The public interest weighs heavily in favor of disclosure, noting the very purpose of Massachusetts Public Records Law is to facilitate transparency in government. Further, there were no assurances to members of the public that their email addresses would remain private or confidential. 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, 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 SPR24/2135 Page 5 August 8, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency