Commonwealth Transparency v. Malden, City of - Public Schools (SPR 20242184)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 15, 2024 SPR24/2184 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 24, 2024, the requestor sought: 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 account of [a named individual]. This request seeks all responsive records, with no limitation on date or time, and within the possession or under the control of the City of Malden. This requests specifically seeks, the To:, From:, Cc:, and Bcc: address fields, the Date and Time that the message was sent and/or received and whether or not there was an attachment. This request specifically excludes the body, the attachments, and the subject of the responsive documents. This requests 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 SPR24/2180 Determination of the Supervisor of Records (August 7, 2024). Subsequently, SPR24/2180 was opened for reconsideration on August 7, 2024. A determination on the reconsideration will be issued within 15 business days. The School responded on August 1, 2024, providing a fee estimate. Unsatisfied with the School’s response, the requestor petitioned this office and this appeal, SPR24/2184, 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 SPR24/2184 Page 2 August 15, 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 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 August 1st Response In its August 1, 2024 response, the School provided a fee estimate of $4,731.00 and stated the following:

Superintendent Timothy Sippel SPR24/2184 Page 3 August 15, 2024 A search was conducted which yielded 137,693 emails and 38,162 attachments. … 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 137,693 rows of email extracts. As a result, the District estimates a total of 191.24 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. 189.24 hours for segregation and redaction at the rate of $25 per hour, yields a total fee estimate of $4,731.00. 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 $4,731.00. Subsequent to the opening of this appeal, on August 5, 2024, the School stated, “[the School] 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 private email addresses, which the Supervisor of Records has routinely approved.” Current Appeal In the appeal petition, the requestor states the following: Malden fails to cite any case law, or codified law… 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

Superintendent Timothy Sippel SPR24/2184 Page 4 August 15, 2024 used… 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… There is no evidence of harm if this information is disclosed. 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. Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency James Donnelly, Esq.