Public Schools Data Exchanger v. Malden, City of - Public Schools (SPR 20242313)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 28, 2024 SPR24/2313 Janell Summers Records Access Officer Malden Public Schools 110 Pleasant Street Malden, MA 02148 Dear Ms. Summers: I have received the petition of Public Schools Data Exchanger (“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 18, 2024, the requestor sought “[a]ll email header information for emails to and/or from [three email addresses] for the calendar years 2016-2022. This request specifically seeks the following fields: To, From, CC, BCC, and Date fields from the responsive emails, including Calendar invitations and responses.” Previous Appeal and Petition This request was the subject of a previous appeal and a petition from the School. See SPR24/2190 Determination of the Supervisor of Records (August 9, 2024) and SPR24/2191 Determination of the Supervisor of Records (August 13, 2024). In my August 9th determination, I found that the School had established good cause for an extension of time, and that the School may assess a fee for segregation and redaction. In my August 13th determination, I found it was unclear whether the School had provided a response to the requestor. Concurrent with its fee petition, the School responded on August 1, 2024, providing a fee estimate. Objecting to the fees, the requestor petitioned this office, and this appeal, SPR24/2313, 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

Janell Summers SPR24/2313 Page 2 August 28, 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). Current Appeal In the appeal petition, the requestor contends the following: Public Schools Data Exchanger has not to this day not received any response directed to and addressed to our organization, for the request above from the RAO/District. [sic] The response, fee petition and determination provided by [an attorney for the School] provided yesterday are directed to and regarding another requestor altogether. . . . Our understanding of the law requires that the RAO/District must provide a

Janell Summers SPR24/2313 Page 3 August 28, 2024 response to the requestor within 10 business days, they did not do that. G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Subsequent to the opening of this appeal, in an email to this office and the requestor on August 15, 2024, an attorney for the School provides the following timeline of events and explanation: • 7/18: Malden received Public Schools Data Exchanger’s request, which was assigned FOIA 2024-0387 in Malden’s system. The request requests email header information for [the specified] emails from 2016-2022. • 8/1: Malden sends response ... to Public Schools Data Exchanger – the response was mistakenly addressed to OpenCommonwealth but was properly sent to Public School Data Exchanger. Malden also sends a fee petition to the Supervisor ... which mistakenly stated that the requester was Open Commonwealth. • In SPR24/2190 ... the Supervisor granted Malden’s fee petition, but stated the requester was OpenCommonwealth and copied OpenCommonwealth based on the information Malden gave in its fee petition. Malden’s position is that it timely responded to Public Schools Data Exchanger. Its clerical mix-up in listing Open Commonwealth as the requester does not negate the fact that Public Schools Data Exchanger received the response and the Supervisor ruled favorably on Malden’s fee petition. This is especially so when Malden suspects OpenCommonwealth and Public Schools Data Exchanger are operated by the same requester. Additionally, the School provided copies of the emails referenced above that were sent to the requestor. Based on the information provided by the School, where the requestor submitted the request on July 18, 2024, and the School responded on August 1, 2024, by providing a fee estimate to the requestor under G. L. c. 66, § 10(b), I find the School may assess a fee to produce responsive records. Accordingly, I will address the School’s August 1st fee estimate. The School’s August 1st Fee Estimate In its August 1, 2024 response, the School provides a total fee estimate of $3,298, and provides the following information in support of its fee estimate: The District interpreted the request to exclude the subject of the email, which is in the header as it was not listed as the categories of information requested. A search was conducted which yielded the following: MWood: 58,907

Janell Summers SPR24/2313 Page 4 August 28, 2024 ecushinsky ... : 20,339 clebrun ... : 17,177 . . . 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 96,423 rows of email extracts. As a result, the District estimates a total of 133.92 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. 131.92 hours for segregation and redaction at the rate of $25 per hour, yields a total fee estimate of $3,298. The actual fee to produce these records may vary based on the actual time spent to complete the necessary review and redaction process. As noted above, the School previously received approval to charge for segregation and redaction, to the extent the responsive records contain the exempt information. See SPR24/2190 Determination of the Supervisor of Records (August 9, 2024). In light of the information provided in the School’s August 1st fee estimate, 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.

Janell Summers SPR24/2313 Page 5 August 28, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Public Schools Data Exchanger