Commonwealth Transparency v. Malden, City of - Office of the City Clerk (SPR 20242167)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 4, 2024 SPR24/2167 Timothy Sippel Superintendent Malden Public Schools 215 Pleasant Street Malden, MA 02148 Dear Superintendent Sippel: I have received the petition of Commonwealth Transparency (OpenCommonwealth/ “requestor”) requesting reconsideration of my August 13, 2024 determination pertaining to a request to the Malden Public Schools (School/District). On July 18, 2024, the requestor sought “[f]rom the time such records begin, through 7/18/2024, please extract the author and all recipients (To:, Cc:, and/or Bcc:), date (but not the body or attachments) sent or received by any email address in the possession and/or under the control of the City of Malden, including but not limited to the City (@cityofmalden.org), the Schools (@maldenps.org), (thus search all systems), where any email address under the control of [an identified individual] (including but not limited to a specified email address) appears as either/or both the author or recipient (To:, Cc:, and/or Bcc:).” Prior Appeal, Petition and Reconsideration This request was the subject of a prior petition and a subsequent reconsideration, as well as an appeal. See SPR24/2168 Determinations of the Supervisor of Records (August 2, 2024 and August 22, 2024) and SPR24/2167 Determination of the Supervisor of Records (August 13, 2024). In my August 13th determination, I found that the School had met its burden to establish that it would take the estimated 450.16 hours to prepare the responsive records for production. In an email to this office on August 13, 2024, the requestor asked that I reconsider my August 13th determination. 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 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 SPR24/2167 Page 2 September 4, 2024 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 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 31st Fee Estimate In its July 31, 2024 response, the School provided a fee estimate of $11,204.16 and stated the following: A search was conducted for @maldenps.org emails which yielded 273,740 emails and 72,385 attachments. The search conducted for @cityofmalden.org emails yielded 50,380 emails. In total, there are 324,120 emails.

Superintendent Timothy Sippel SPR24/2167 Page 3 September 4, 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 [the] 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 324,120 rows of email extracts. As a result, the District estimates a total of 450.16 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. 448.16 hours for segregation and redaction at the rate of $25 per hour, yields a total fee estimate of $11,204.16. 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 $11,204.16. Additionally, on on August 3, 2024, the City stated, “Malden is not charging for redaction of public email addresses of its employees, nor is it redacting such information. Malden is simply charging for redaction of personal email addresses…” Reconsideration Request In the request for reconsideration, the requestor stated the following: To allow Malden to redact “private” email addresses will allow Malden to secrete and withhold information key to the public’s right to know and observe how our government officials perform their duties, how they expend our dollars and resources and enables a culture where corruption, conflicts of interest and violations of Open Meeting and Public Records law.

Superintendent Timothy Sippel SPR24/2167 Page 4 September 4, 2024 … 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 M.G.L. c66, §§ 10-10A. The information sought possibly contains email addresses of members of the public who communicated via email with municipal officials. No log or quantification of what Malden deems segregable or redactable “private email addresses” has been produced or provided. 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. Conclusion After another careful review of this matter, I respectfully decline to reverse my findings in the August 13th determination. If the requestor is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). 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. Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency