Commonwealth Transparency v. Malden, City of (SPR 20242777)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 15, 2024 SPR24/2777 Carol Ann Desiderio City Clerk City of Malden 215 Pleasant Street, Room 220 Malden, MA 02148 Dear Ms. Desiderio: On October 7, 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 23, 2024 through October 7, 2024, the requestor submitted 14 public records requests, seeking data extracts of text messages, voicemails, and emails for numerous City employees, and for numerous City group email addresses. In an email to this office on October 7, 2024, the requestor objects to the City’s petition. Petitions 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; (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 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 SPR24/2777 Page 2 October 15, 2024 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) 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, and the capacity of the City to produce the request without the extension, 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 SPR24/2777 Page 3 October 15, 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). Current Petition to Assess Fees In its petition, the City “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.”

Carol Ann Desiderio SPR24/2777 Page 4 October 15, 2024 Regarding the numerous requests for extracts of text messages and voicemail messages, the City explains the following: The records may contain attorney-client privileged information, as this individual 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 records 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 individual may communicate about such information with City employees. The records may also contain the personal email address, personal phone number, or home addresses of City employees, information protected by Exemption (o). . . . The records may contain criminal record information exempt from disclosure pursuant to Exemption (a) and G.L. c. 6, § 167, among other statutes. The records may also contain information related to internal Police Department procedures which, if disclosed, would jeopardize public safety, exempt from disclosure by Exemption (n). Additionally, the records may contain attorney-client privileged information, as this individual 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 records 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 individual may communicate about such information with City employees. The records may also contain the personal email address, personal phone number, or home addresses of City employees, information protected by Exemption (o). Regarding the numerous requests for extracts of data from emails, the City explains that “the emails may contain the personal email address of members of the public, information protected by Exemption (c), or of City employees, information protected by Exemption (o).” 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, the request 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. As some of the requests seek records from Police Department personnel, the City is reminded that the current language of Exemption (c) prohibits its application to records related to law enforcement misconduct investigations. See G. L. c. 4, § (26)(c).

Carol Ann Desiderio SPR24/2777 Page 5 October 15, 2024 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 request, the City argues the following: In this case, Malden received 14 public records requests from Open Commonwealth within a span of ten business days starting on September 23, 2024. These requests continued the pattern of incessant, abusive, and harassing public records requests from Open Commonwealth. From January 1, 2024 to September 23, 2024, Open Commonwealth had submitted 149 public records requests to Malden, including 26 between September 4 and September 18. Malden submitted 61 separate fee petitions to the Supervisor of Records out of the 149 total requests this year prior to September 23, 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. This outrageous volume of requests, appeals, and requests for reconsideration far exceeds what the Supervisor has considered “harassment” in the past. See SPR17/1390. Additionally, the volume far exceeds what other states have considered to be “harassment” in the public records context. See Department of Corrections v. McKee, 199 Wash. App. Ct. 635 (2017); City of Portage v. O’Grady, 2019AP354 (Wisc. App. Ct., April 30, 2020). 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.”).

Carol Ann Desiderio SPR24/2777 Page 6 October 15, 2024 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, [specified 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 14 since September 23, 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 Commonwealth knows a fee will be required, Open Commonwealth has paid the fee estimate on exactly one occasion this year out of 61 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. For these reasons, the District asks that the Supervisor relieve Malden of its obligations to respond to this request. 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.

Carol Ann Desiderio SPR24/2777 Page 7 October 15, 2024 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, Open Commonwealth 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.