Commonwealth Transparency v. Malden, City of - Office of the City Solicitor (SPR 20242596)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 20, 2024 SPR24/2596 Alicia A. McNeil City Solicitor City of Malden Office of the City Solicitor 215 Pleasant Street, Suite 420 Malden, MA 02148 Dear Ms. McNeil: On September 16, 2024, this office received your petition on behalf of the City of Malden (City) seeking an extension of time to produce records, requesting permission to assess fees for time spent segregating and redacting responsive records and seeking a waiver of statutory limits to fees that may be assessed in responding to the request. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the City furnished a copy of the petition to the requestor, Open Commonwealth. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On September 3, 2024, the requestor sought “[a]ll public records created, received, or otherwise found in the email address/account [identified email address]. This request also specifically seeks all public records which were created, received or otherwise found in the email address/account [identified email address] which have been subsequently relinquished to any custodian(s) of public records in Malden.” Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; 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

Alicia A. McNeil SPR24/2596 Page 2 September 20, 2024 (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current Petition In its petition, the City requests “an additional 30 business days beyond the time specified under the statute” and provides the following information in support of its request: [M]alden has filed this request within those time periods. Therefore, Malden hereby petitions for an extension of time to respond to this request given that the scope of redactions required to prevent unlawful disclosure is significant. ... [M]alden will be unable to produce the records during normal business hours of operation without an extension in light of the fact that only counsel is able to review the documents to determine the application of attorney-client privilege. In light of the need to collect, segregate and examine the records, as well as the capacity of the City to produce the records without an extension, the City has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The City is granted an extension of 30 business days. Petition to assess fees – Municipalities The Supervisor may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the

Alicia A. McNeil SPR24/2596 Page 3 September 20, 2024 public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my understanding that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Petition to Assess Fees In its petition, the City requests “the ability to charge for redactions under the attorney-

Alicia A. McNeil SPR24/2596 Page 4 September 20, 2024 client privilege” and provides the following in support of its request: [T]he request seeks emails from the former City Solicitor of the City of Malden. Those records likely contain the content of discussions between the City Solicitor and her clients for the purpose of obtaining legal advice, which has not been shared with the public and is therefore protected by the attorney-client privilege.... [A]ccordingly, the records will need to be reviewed to determine if they contain information protected by the attorney-client privilege which have not been waived, and then any necessary redactions will need to be made. ... [A]dditionally, these documents may require redactions in accordance with the exemption set for at G. L. c. 4, § 7(26)(c). Accordingly, Malden needs to review and redact documents to the extent they contain information concerning employees that relates to performance or complaints, evaluation of employees, requests for accommodations, leaves of absences, and discipline of employees. Please be advised, records custodians may assess fees for time spent segregating or redacting records where such segregation or redaction is required by law. See 950 C.M.R. 32.07(2)(d) (stating that fee for segregation or redaction is permissible when approved by Supervisor or when required by law (emphasis added)). Where the City only seeks to assess fees pursuant to attorney-client privilege which is required by law, I find it unnecessary to opine on whether the City may assess fees for segregating and redacting the records. Fee in Excess of $25.00 per Hour In its petition, the City is seeking to “charge a fee of more than $25 per hour to review, redact and produce the records,” and provides the following in support of its request to charge fees in excess of $25.00 per hour: [I]n this case, the Assistant City Solicitor is the lowest paid employee with the necessary skill to determine whether the attorney-client privilege requires certain portions of the records Open Commonwealth seeks to be redacted. While performing that review, the Assistant City Solicitor can also determine whether other exemptions apply, rather than have a separate employee review the records at additional cost. The Assistant City Solicitor’s hourly rate is $48. I find the City has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). Conclusion As described above, I find that the City has established good cause for a time extension of 30 business days.

Alicia A. McNeil SPR24/2596 Page 5 September 20, 2024 In light of the above, it is unnecessary to opine on the City’s petition for permission to charge for time spent segregating or redacting responsive records. I find the City has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction, segregation or by assessing a fee in excess of $25.00 per hour. See G. L. c. 66, § 10(d)(iv). In light of the factors in G. L. c. 66, § 10(d)(iv), I find the City may charge the City employee’s hourly rate of $48.00 per hour for the detailed tasks. G. L. c. 66, § 10(d)(iii). Further, this office encourages the requestor and the City to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii). Please note, the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10A. Sincerely, Manza Arthur Supervisor of Records cc: Open Commonwealth