Commonwealth Transparency v. Malden, City of (SPR 20242605)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 24, 2024 SPR24/2605 Carol A. Desiderio City Clerk City of Malden 215 Pleasant Street Malden, MA 02148 Dear Ms. Desiderio On September 17, 2024, this office received your petition on behalf of the City of Malden (City) seeking an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. 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, Commonwealth Transparency (“requestor”). G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). On August 30, 2024, the requestor sought the following records: [1.] 1/1/24-Present,:Extract-To/From/CC/BCC/Date/any attachment for [identified individual][;] [2.] 1/1/24-Present,:Extract-To/From/CC/BCC/Date/any attachment for [identified email addresses][;] [3.] 1/1/24-Present,:Extract-To/From/CC/BCC/Date/any attachment for [identified individual][;] [4.] 1/1/24-Present,:Extract-To/From/CC/BCC/Date/any attachment for various “mayor accounts” as per 2 above and [identified individuals]. 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: 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 A. Desiderio SPR24/2605 Page 2 September 24, 2024 (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; (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…” In support of its request, the City provides the following information: Given the broad scope of the request and the volume of potentially responsive records which require detailed review and redaction, the City submits that it is not reasonable to require it to produce the responsive records within 10 business days. Therefore, the City hereby petitions for an extension of time to respond to the request, given that the scope of redaction required to prevent unlawful disclosure is significant. Additionally, the employee who will perform the search and recovery, segregation and redaction process have many other responsibilities which they cannot ignore. The City will be unable to complete its review, redaction, and production of records during normal business hours of operation without an extension. In light of the need to collect the records and 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.

Carol A. Desiderio SPR24/2605 Page 3 September 24, 2024 Petition to Assess Fees – Municipalities The Supervisor of Records (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 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. 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 determination 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 A. Desiderio SPR24/2605 Page 4 September 24, 2024 Petition to Assess Fees The City submitted their petition on September 17, 2024, more than ten business days after receipt of the request. In light of the fact that the City has not demonstrated it submitted a timely petition, permission to charge for time spent segregation or redacting responsive records cannot be granted. 950 C.M.R. 32.06(4)(d). Conclusion Accordingly, I find that the City has established good cause for a time extension of 30 business days as described above. However, in light of the fact that the City has not demonstrated it submitted a timely fee petition, permission to charge for time spent segregating or redacting responsive records cannot be granted. 950 C.M.R. 32.06(4)(g). 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, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency