Commonwealth Transparency v. Malden, City of - Office of the City Clerk (SPR 20242607)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 1, 2024 SPR24/2607 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 two separate requests on August 30, 2024, the requestor sought the following: [1.] [T]he following documents/records without date or time constraint: All public records created, received, or otherwise found in the email address/account [specified email address]@gmail.com. This request also specifically seeks all public records which were created, received, or otherwise found in the email address/account [specified email address]@gmail.com which have been subsequently relinquished to any custodian(s) of public records in Malden. [2.] [T]he following documents/records without date or time constraint: All public records created, received, or otherwise found in the email address/account [specified email address]@comcast.net. This request also specifically seeks all public records which were created, received, or otherwise found in the email address/account [specified email address]@comcast.net which have been subsequently relinquished to any custodian(s) of public records in Malden. Previous Petition This request was the subject of a previous petition from the City. See SPR24/2610 Determination of the Supervisor of Records (September 20, 2024). In my September 20th determination, I found that while the City had established good cause for an extension of time, 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 SPR24/2607 Page 2 October 1, 2024 the City did not demonstrate that it submitted a timely fee petition, and that permission to charge for segregation and redaction could not be granted. I also noted that this does not preclude the City from charging for segregation and redaction that is required by law. Prior to submitting its fee petition, the City responded on September 16, 2024, providing a fee estimate. Objecting to the fees, the requestor petitioned this office, and this appeal, SPR24/2607, 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).

Carol Ann Desiderio SPR24/2607 Page 3 October 1, 2024 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 his appeal petition, the requestor “requests that the SPR bifurcate the response of Malden into two separate and distinct requests, responses, and appeals.” The requestor goes on to argue that the City should “provide all responsive records to OpenCommonwealth without delay and without charge as Malden failed to provide all responsive records in their possession and/or under their control within 10 business days as required by law.” The requestor is advised that a requestor may not divide a request into multiple parts in order to circumvent the fees allowed by the Public Records Law. The City’s September 16th Fee Estimate In its September 16, 2024 response, the City provides a total fee estimate of $6,387.00, and gives the following information in support of its fee estimate: [The first individual] has informed the City that his personal email address is not ... as you requested but [specified email address]@gmail.com. Since we are aware of this, we are responding for the accurate email. Please note that in 3 instances an email from a city account was sent to [the incorrect personal email address] in error. [The individual] has estimated that he has well over 14,000 emails on his personal account with approximately 7800 of those for the keyword “Malden School Committee”. [The individual] served in the capacity as a School Committee member. [The second individual] informed the City that he does not have any other emails in [the specified email address]@comcast.net that are city of Malden business related except for the emails he receives from or to Cityofmalden.org. Thus, we have performed a search of his email resulting in 1,449 emails from or to his email address. . . . In particular, [the first individual] served on the School Committee and also as an employee of Malden Public Schools. Therefore, many of the emails may contain personal information pertaining to students and/or attorney client privilege communications. [The second individual] is a member of the Cannabis Licensing and Enforcement Commission for the city and applications have personal information of those seeking permits including social security #’s, Cori applications, Bank information etc. . . . First, these records may contain the content of discussions between the City and its attorneys, for purpose of obtaining legal advice, which has not been shared

Carol Ann Desiderio SPR24/2607 Page 4 October 1, 2024 with the public and is therefore protected by the attorney-client privilege. ... Accordingly, the records will need to be reviewed to determine if they contain information protected by the attorney-client privilege and then any necessary redactions will need to be made. Second, the records may contain personal identifying information of public school students. ... Like the agreement at issue in Champa, communication between the District and legal counsel contain personal identifying information of public school students who enjoy mandated confidentiality; indeed, such documents, if released, would reveal the identities, disabilities and information on their educational programming. Further, since legal counsel is counseling the District on the educational services and programming that is providing to students, especially special education students, these records should be deemed exempt from Public Records Law disclosure under Exemption (a) because, as supported by Champa, state and federal regulations compel the District to protect educational records from disclosure. Specifically, they are protected by the Federal Education Rights Privacy Act, Massachusetts General Law, Chapter 71, Section 34A to 34H, and 603 CMR 23.00 et. seq. At the very least, the records will need to be reviewed to determine if they contain any student information, and then any necessary redactions will need to be made. Third, 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. . . . 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), the Requester 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. ... The City estimates that it will take 1 minute per email to segregate and redact the email. As a result, the City estimates a total of 257.5 hours. (15,500 emails x 1 minute per email) After subtracting the first two (2) hours, 255.5 hours for segregation and redaction at the rate of $25 per hour, yields a total fee estimate of $6,387.00. The City is advised that, in accordance with the Public Records Law, 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). As noted above, the City’s petition requesting to assess fees for segregation and redaction of the records was not granted. See SPR24/2610 Determination of the Supervisor of Records (September 20, 2024). Consequently, the City must provide further clarification as to whether it is assessing fees only for segregation and redaction that is required by law. For the reasons discussed above, I find the City must revise its fee estimate, or provide

Carol Ann Desiderio SPR24/2607 Page 5 October 1, 2024 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