Commonwealth Transparency v. Malden, City of (SPR 20242508)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 19, 2024 SPR24/2508 Carol Ann Desiderio City Clerk City of Malden 215 Pleasant Street, Room 220 Malden, MA 02148 Dear Ms. Desiderio: I have received the petition of Commonwealth Transparency (“requestor”) appealing the response of the City of Malden (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). In four separate requests on August 26, 2024, the requestor sought the following records: [1.] [T]he last 50 text messages containing and/or regarding official City business from the cellular devices of the following [list of seven] people... [2.] [A]n export of all applications installed on the following [list of six] cellular device numbers... [3.] [A]n export of the following public records for the [list of three] Cellular Numbers/Devices... The device manufacturer, model and serial number; The last 100 phone calls Inbound and Outbound; The last 100 Voice Mail Messages; All applications installed on the device; The last 100 text messages. [4.] [T]he last 12 months of billing from the cellular/network provider(s) for the following [list of nine] cellular numbers... Previous Petition This request was the subject of a previous petition from the City. See SPR24/2463 Determination of the Supervisor of Records (September 4, 2024). In my September 4th 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

Carol Ann Desiderio SPR24/2508 Page 2 September 19, 2024 determination, I found that the City had established good cause for a time extension of 30 business days. On September 3, 2024, the City responded to the requestor, providing a fee estimate. Objecting to the fees, the requestor petitioned this office, and this appeal, SPR24/2508, 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). 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).

Carol Ann Desiderio SPR24/2508 Page 3 September 19, 2024 Current Appeal In his appeal petition, the requestor contends the following: 1. Malden failed to produce segregable records: a. The request for cellular telephone bills does not and cannot contain the single cited possible exemption. Malden MUST produce these. b. The request for applications loaded on cellular telephones does not and cannot contain the single cited possible exemption. Malden MUST produce these. c. The Device Information of cellular telephones does not and cannot contain the single cited possible exemption. Malden MUST produce these. d. Telephone calls made and received from a cellular device does not and cannot contain the single cited possible exemption. Malden MUST produce these. 2. Malden failed to specifically the exact quantify the record set, [sic] the specific time required to segregate and redact and how the specific exemption applies to the records sought. The City’s September 3rd Response In its September 3, 2024 response, the City provides a total fee estimate of $325, and provides the following information in support of its fee estimate: The City has no way of knowing if any texts contain information pertaining to FERPA regulations, as such, this is not included in the fee calculated. . . . 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. . . . Based on sample testing, following is a fee estimate for the records requested: 2024-0454-Cell Phone Bills-16 minutes per monthly billing in order to locate, identify, extract and submit the information. 16 times 12 months of bills totals 192 minutes or 3.2 hours. 2024-0451, 0452 & 0453-Approximately 710 minutes or 11.83 hours to cull out the information requested from the various cell phone numbers. As a result, the City estimates a total of 15 hours to produce records requested. You will not be charged for the first two hours. 13 hours for locating, identifying, extracting and submitting the records at the rate of $25 per hour, yields a total fee estimate of $325. In this case, although the City has confirmed that it is charging less than the hourly rate of

Carol Ann Desiderio SPR24/2508 Page 4 September 19, 2024 the lowest paid employee with the necessary skills, and that it is assessing a fee only for locating and identify the records, and not for segregation and redaction, it is unclear why the City requires the amount of time described in its fee estimate in order to produce the records. Specifically, it is unclear what amount of time the City requires for each of the four requests. The City must provide further details regarding the tasks involved and what each task entails. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). For the reasons discussed above, I find the City must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the City is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency