Commonwealth Transparency v. Malden, City of (SPR 20242625)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 25, 2024 SPR24/2625 Carol Ann Desiderio City Clerk City of Malden 215 Pleasant Street, Room 220 Malden, MA 02148 Dear Ms. Desiderio: On September 18, 2024, this office received the petition of Attorney James Donnelly on behalf of the City of Malden (City) seeking an extension of time to produce records, permission to charge for time spent segregating or redacting responsive records, and relief from the obligation to produce 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, I understand that the City furnished a copy of this petition to the requestor, Open Commonwealth (“requestor”). G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). From September 4, 2024 through September 18, 2024, the requestor “submitted 26 public records requests to the City of Malden,” including requests for text messages, extracts of various data from numerous cellular devices, email communications, and extracts of data from numerous email addresses. Petitions for an Extension of Time and to be Relieved of the Obligation to Provide Records 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; (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 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 SPR24/2625 Page 2 September 25, 2024 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) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(b). Request for Additional Time to Produce Responsive Records In its petition, the City requests an extension of 30 business days and provides the following information in support of its request: [G]iven the broad scope of the requests and the volume of potentially responsive records which require detailed review and redaction, Malden 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 has many other responsibilities which they cannot ignore. Malden will be unable to complete its review, redaction, and production of records during normal business hours of operation without an extension. I find that in light of the need to search for, collect, segregate and examine the records, the scope of redaction required to prevent unlawful disclosure, the capacity of the City to produce the numerous requests without the extension, and efforts undertaken by the City in fulfilling the current and previous requests, the City has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The City is granted an extension of 30 business days. 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).

Carol Ann Desiderio SPR24/2625 Page 3 September 25, 2024 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). Petition to Assess Fees In its petition, “Malden requests that the Supervisor authorize it to charge a fee to produce the records sought, as set forth below, because the responsive records implicate several exemptions under the Public Records Law, and will require detailed review and redaction prior to production.” In its fee petition, the City copies each of the 26 requests, “followed by an explanation of why each request needs to be reviewed for redactions and its fee estimate for each

Carol Ann Desiderio SPR24/2625 Page 4 September 25, 2024 request.” In support of its request to assess fees, the City provides the following information, summarized below: Regarding the numerous requests for text messages, the City explains the following: The texts may contain student record information protected by FERPA and Exemption (a) of the Public Records Law, as the Mayor is also the Chair of the School Committee. The texts may also contain attorney-client privileged information, as the Mayor often communicates with attorneys for both the City and the School Committee for the purpose of obtaining legal advice, which has not been shared with the public. The texts may also contain information protected from disclosure by Exemption (c), including personnel file information or other information the disclosure of which would constitute an unwarranted invasion of personal privacy, as the Mayor oversees many employees and often communicates with them. The records may also contain the personal email address, personal phone number, or home addresses of City employees, information protected by Exemption (o). . . . The texts may contain attorney-client privileged information, as [each City employee named in the requests] communicates with City attorneys for the purpose of obtaining legal advice, which has not been shared with the public, or shares such information with other Malden employees. The texts may also contain information protected from disclosure by Exemption (c), including personnel file information or other information the disclosure of which would constitute an unwarranted invasion of personal privacy, as this employee may communicate such information to City employees, like Human Resources. The texts may also contain the personal email address, personal phone number, or home address of other City employees, information protected by Exemption (o). Regarding the numerous requests for exports from cellular devices, the City explains the following: This information may contain information protected by Exemption (n) which would jeopardize the cyber security of phones used for City business, including the device manufacturer, model and serial number of each phone and applications installed on each device. This information also may contain cell phone numbers of members of the public or other City employees which are protected by Exemption (c) and Exemption (o). Regarding the numerous requests for emails, the City explains the following: Malden will need to perform a search for the requested email between the Mayor and the Special Assistant to the Mayor and review it and any attachments to determine if it contains any information protected by the attorney-client privilege, FERPA and Exemption (a), or personnel file information protected by Exemption

Carol Ann Desiderio SPR24/2625 Page 5 September 25, 2024 (c). . . . Malden needs to review each email and any attachments for redactions pursuant to Exemption (a) and Exemption (c). The Globe communicates with Malden on potential stories. Some of the Globe’s emails may contain student record information protected by FERPA, CORI information of individuals, or other statutorily protected information or information the disclosure of which would constitute an unwarranted invasion of privacy. If Malden were to produce its responses to those emails, the records would disclose information exempt under Exemption (a) or (c). Regarding the numerous requests for extracts of data from emails, the City explains the following: The responsive records may contain personal email addresses from members of the public (protected by Exemption (c)) or other employees (protected by Exemption (o)) communicating with the City’s Controller. As such, each line needs to be reviewed for personal email addresses to redact. In light of the City’s petition, I find the City has met its burden to explain how, given the nature of the responsive records, these requests could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the City may assess a fee for the segregation and redaction of such exempt material. Request for Relief In its petition, the City “seeks that the Supervisor relieve the [City] of its obligation to provide copies of the records sought.” In support of its petition for relief, the City argues the following: In this case, Open Commonwealth has submitted 26 separate public records requests to the City of Malden within a span of ten business days starting on September 4, 2024. These requests continued the pattern of incessant, abusive, and harassing public records requests from Open Commonwealth. From January 1, 2024 to September 4, 2024, Open Commonwealth had submitted 123 public records requests to Malden. Malden submitted 35 separate fee petitions to the Supervisor of Records out of the 123 total requests this year prior to September 4, 2024. Open Commonwealth appealed Malden’s response to its public records request on 52 separate occasions. When the Supervisor approved one of Malden’s fee petitions, Open Commonwealth requested reconsideration of the Supervisor’s determination on 9 separate occasions. When the Supervisor denied one of Open Commonwealth’s appeals, Open Commonwealth requested consideration of the denial on another 9 separate occasions.

Carol Ann Desiderio SPR24/2625 Page 6 September 25, 2024 Further, Open Commonwealth’s non-stop public records requests, appeals, and requests for reconsideration continue the pattern of harassment of Malden from previous years. Open Commonwealth was founded and remains operated by Bruce Friedman. Since he instituted litigation at the Bureau of Special Education Appeals in September 2019, Bruce Friedman and Open Commonwealth had made hundreds of public records requests prior to 2024. The continuing harassment of Malden is already the subject of current and active litigation. See Malden Public Schools v. Rebecca S. Murray, Supervisor of Records of the Public Records Division of the Office of William Francis Galvin, Secretary of the Commonwealth and William Francis Galvin, Secretary of the Commonwealth and Bruce Friedman, (Docket No. # 2181CV01458). Mr. Friedman’s and Open Commonwealth’s requests continue to request the same information that is the subject of the pending litigation. The Public Records Law is not intended to allow litigants to work around the legal process. In accordance with 950 CMR 32.08(2)(b)(1), the Supervisor consistently has rejected the obligation to turn over records in such circumstances. See, e.g., SPR19/102 (“Whereas the requested records are the subject of dispute in active litigation, and in particular the subject of a discovery request, I decline to opine on this matter.”). Moreover, upon information and belief, Bruce Friedman has also created a new email and has submitted further public records requests to Malden using the email address, ...@publicschoolsdata.com. By using a separate email address, Mr. Friedman further barrages Malden with public records requests without the number of requests being added to Open Commonwealth’s total. Furthermore, as detailed below, many of these requests, including the instant 26 since September 4, 2024, are duplicative of each other and previous public records requests submitted by Open Commonwealth. To harass Malden, Open Commonwealth often requests the same information but simply changes the number of records requested, alternating between the latest 50, 75, or 100 records, despite the presence of an approved fee petition for those same records or a pending fee petition before the Supervisor. Open Commonwealth lets the Supervisor know that it has modified its request, causing the Supervisor to decline to opine on the pending fee petition, and then Open Commonwealth resubmits the same request but for a different number of records, causing Malden to have to respond and submit a new fee petition on each occasion. Similarly, as seen below, Open Commonwealth repeatedly requests the same information but for different Malden employees or officials despite the issuance of an approved fee petition from the Supervisor which authorizes a fee for a records request regarding a different employee or official. These requests are not intended for broad dissemination to the public about government activity. Open Commonwealth has received approved fee petitions which state that the information he is requesting is exempt from disclosure, and yet continues to request the same exempt information. Even though Open

Carol Ann Desiderio SPR24/2625 Page 7 September 25, 2024 Commonwealth knows a fee will be required, Open Commonwealth has paid the fee estimate on exactly one occasion this year out of 35 fee petitions, showing that Open Commonwealth almost never has any intention of actually acquiring the records requested. And, Open Commonwealth repeatedly informs the Supervisor of modified requests so that the Supervisor will drop a pending fee petition, even though the new request requires the same fee petition and more work for Malden. The only purpose behind Open Commonwealth’s requests is to harass Malden, its officials, and its employees. Based on the information provided in the City’s petition, I find that the City has not demonstrated that the requests are frivolous and not intended for the broad dissemination of information to the public about actual or alleged government activity, as required by G. L. c. 66, § 10(c). Consequently, I cannot grant the City’s petition seeking relief from its obligation to produce responsive records at this time. Conclusion Accordingly, I find the City has established good cause for a time extension of 30 business days as described above. Additionally, to the extent the responsive records contain the exempt information described above, the City may assess a fee for segregation and redaction. However, as noted above, I am unable to grant the City’s request for relief from the obligation to produce responsive records. 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: Open Commonwealth James Donnelly, Esq.