Commonwealth Transparency v. Malden, City of - Public Schools (SPR 20242183)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 15, 2024 SPR24/2183 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) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 24, 2024, the requestor sought “[e]xtract the author and all recipients (To:, Cc:, and/or Bcc:), date, and time of all email sent by and/or received by any electronic mail (including, but not limited to @maldenps.org and @cityofmalden.org accounts) accounts of [an identified individual].” Previous Petition This request was the subject of a previous petition from the School. See SPR24/2187 Determination of the Supervisor of Records (August 7, 2024). In my August 7th determination, I found that the School may assess a fee for segregation and redaction, and had established good cause for a time extension of 30 business days. Concurrent with its petition, the School responded to the requestor on July 26, 2024, providing a fee estimate. Objecting to the fees, the requestor petitioned this office, and this appeal, SPR24/2183, 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 SPR24/2183 Page 2 August 15, 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 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 26th Fee Estimate In its July 26, 2024 response, the School provides “a total fee estimate of $11,219.75,” and provides the following information in support of its fee estimate: A search was conducted for @maldenps.org emails which yielded 274,327 emails and 72,529 attachments. The search conducted for @cityofmalden.org emails yielded 50,247 emails. In total, there are 324,574 emails. Please note that because of the different email system used by @cityofmalden.org, the system does not allow the extraction of attachment only. In order to provide the number of attachments, the entire email needs to be produced, which will require review and redactions. Since the request was just for the number of attachments and not the entire email and attachment, the district is unable to provide the number of

Superintendent Timothy Sippel SPR24/2183 Page 3 August 15, 2024 attachments for @cityofmalden.org emails. The City’s email system does not allow for the column (attachments) in the extraction. . . . The records you seek need to be reviewed, and potentially redacted. The responsive records may include private personal email address 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. . . . To produce these records, the District provides the following fee estimate. ... 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 you seek 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 324,574 rows of email extracts. As a result, the District estimates a total of 450.79 hours for the email extracts. 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. 448.79 hours for segregation and redaction at the rate of $25 per hour, yields a total fee estimate of $11,219.75. The actual fee to produce these records may vary based on the actual time spent to complete the necessary review and redaction process. 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 SPR24/2187 Determination of the Supervisor of Records (August 7, 2024). In light of the information provided in the School’s July 26th response, I find the School has met its burden to establish that it would take this amount of time to segregate or redact the responsive records. 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.

Superintendent Timothy Sippel SPR24/2183 Page 4 August 15, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency