Commonwealth Transparency v. Malden, City of (SPR 20242781)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 5, 2024 SPR24/2781 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 numerous requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). From September 4, 2024 through September 18, 2024, the requestor submitted the following 26 requests: [1] Please provide the last 300 text messages containing and/or regarding official City business from the cellular devices of [a named individual.] [2] Please provide the last 100 text messages containing and/or regarding official City business from the cellular devices of the following [list of 6 individuals.] [3] Please provide an export of the following public records for [a list of three] Cellular Numbers/Devices: . . . The device manufacturer, model and serial number; The last 300 phone calls Inbound and Outbound; All applications installed on the device[.] [4] Please provide the following [list of 23 specified] email communications, in their entirety, in the format which they are regularly maintained including all metadata and all attachments[.] [5] Please provide the following [list of 3 specified] email communications, in their entirety, in the format which they are regularly maintained including all metadata and all attachments[.] [6] From 1/1/2024 through the date you receive this request, please extract the author and all recipients (To:, Cc:, and/or Bcc:), date (but not the body 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 SPR24/2781 Page 2 November 5, 2024 attachments) sent or received by any email address in the possession and/or under the control of the City of Malden, including but not limited to the City (@cityofmalden.org), The Schools (@maldenps.org), (thus search all systems), where any email address under the control of [a named individual] appears as either/or both the author or recipient (To:, Cc:, and/or Bcc:). This requests specifically seeks, the To:, From:, Cc:, and Bcc: address fields, the Date and Time that the message was sent and/or received, and whether there was or was not an attachment. This requests specifically requests that the export be provided in ONLY .CSV or .XLSX form. [7] For the entirety of all records available, please extract the author and all recipients (To:, Cc:, and/or Bcc:), date (but not the body or attachments) sent or received by any email address in the possession and/or under the control of the City of Malden, including but not limited to the City (@cityofmalden.org), where the following people send ANY email sent to a BCC: address [list of 8 individuals.] This requests specifically seeks, the To:, From:, Cc:, and Bcc: address fields, the Date and Time that the message was sent and/or received, and whether there was or was not an attachment. This requests specifically requests that the export be provided in ONLY .CSV or .XLSX form. [8] Please provide all emails sent to any email address at the “@globe.com” FQDN [sic] for the time period of January 1, 2014, through the date you receive this request. [9] Please extract the author and all recipients (To:, Cc:, and/or Bcc:), date (but not the body or attachments) from the most recent 100 emails sent to AND the most recent 100 emails received by the below email addresses [list of 4 email addresses.] This request specifically includes calendar items, including invitations, declinations, and/or acceptances. This requests specifically seeks, the To:, From:, Cc:, and Bcc: address fields, the Date and Time that the message was sent and/or received, and whether there was or was not an attachment. This requests specifically requests that the export be provided in ONLY .CSV or .XLSX form. [10] Please extract the author and all recipients (To:, Cc:, and/or Bcc:) and date all personal email addresses used for City business by [a named individual]. This requests specifically seeks, the To:, From:, Cc:, and Bcc: address fields, the Date and Time that the message was sent and/or received, and whether or not there was an attachment, and if there was an attachment, the full name of the attachment. This requests specifically requests that the export be provided in ONLY .CSV or .XLSX form. [11] Please extract the author and all recipients (To:, Cc:, and/or Bcc:) and date all personal email addresses used for City business by [a named individual]. This requests specifically seeks, the To:, From:, Cc:, and Bcc: address fields, the Date

Carol Ann Desiderio SPR24/2781 Page 3 November 5, 2024 and Time that the message was sent and/or received, and whether or not there was an attachment, and if there was an attachment, the full name of the attachment. This requests specifically requests that the export be provided in ONLY .CSV or .XLSX form. [12] Please extract all text messages of City business on any device, including any personal device of [a named individual], this request specifically seeks text messages both sent and received. Please extract all voice mail messages of City business on any personal device of [the named individual], this request specifically seeks both the voice recording and any renderings of said recordings including but not limited to transcriptions, text messages and/or email messages. This requests specifically requests that the extract be provided in the original format, machine readable, and not screenshots or .pdf format. [13] Please extract all text messages of City business on any device, including any personal device of [a named individual], this request specifically seeks text messages both sent and received. Please extract all voice mail messages of City business on any personal device of [the named individual], this request specifically seeks both the voice recording and any renderings of said recordings including but not limited to transcriptions, text messages and/or email messages. This requests specifically requests that the extract be provided in the original format, machine readable, and not screenshots or .pdf format. [14] Please extract all text messages of City business on any device, including any personal device of [a named individual], this request specifically seeks text messages both sent and received. Please extract all voice mail messages of City business on any personal device of [the named individual], this request specifically seeks both the voice recording and any renderings of said recordings including but not limited to transcriptions, text messages and/or email messages. This requests specifically requests that the extract be provided in the original format, machine readable, and not screenshots or .pdf format. [15] Please extract the author and all recipients (To:, Cc:, and/or Bcc:) and date all personal email addresses used for City business by [a named individual]. This requests specifically seeks, the To:, From:, Cc:, and Bcc: address fields, the Date and Time that the message was sent and/or received, and whether or not there was an attachment, and if there was an attachment, the full name of the attachment. This requests specifically requests that the export be provided in ONLY .CSV or .XLSX form. [16] Please extract the author and all recipients (To:, Cc:, and/or Bcc:) and date all personal email addresses used for City business by [a named individual]. This requests specifically seeks, the To:, From:, Cc:, and Bcc: address fields, the Date and Time that the message was sent and/or received, and whether or not there was an attachment, and if there was an attachment, the full name of the attachment.

Carol Ann Desiderio SPR24/2781 Page 4 November 5, 2024 This requests specifically requests that the export be provided in ONLY .CSV or .XLSX form. [17] Please extract all text messages of City business on any device, including any personal device of [a named individual], this request specifically seeks text messages both sent and received. Please extract all voice mail messages of City business on any personal device of [the named individual], this request specifically seeks both the voice recording and any renderings of said recordings including but not limited to transcriptions, text messages and/or email messages. This requests specifically requests that the extract be provided in the original format, machine readable, and not screenshots or .pdf format. [18] Please extract the author and all recipients (To:, Cc:, and/or Bcc:) and date all personal email addresses used for City business by [a named individual]. This requests specifically seeks, the To:, From:, Cc:, and Bcc: address fields, the Date and Time that the message was sent and/or received, and whether or not there was an attachment, and if there was an attachment, the full name of the attachment. This requests specifically requests that the export be provided in ONLY .CSV or .XLSX form. [19] Please extract all text messages of City business on any device, including any personal device of [a named individual], this request specifically seeks text messages both sent and received. Please extract all voice mail messages of City business on any personal device of [the named individual], this request specifically seeks both the voice recording and any renderings of said recordings including but not limited to transcriptions, text messages and/or email messages. This requests specifically requests that the extract be provided in the original format, machine readable, and not screenshots or .pdf format. [20] Please extract all text messages of City business on any device, including any personal device of [a named individual], this request specifically seeks text messages both sent and received. Please extract all voice mail messages of City business on any personal device of [the named individual], this request specifically seeks both the voice recording and any renderings of said recordings including but not limited to transcriptions, text messages and/or email messages. This requests specifically requests that the extract be provided in the original format, machine readable, and not screenshots or .pdf format. [21] Please extract the author and all recipients (To:, Cc:, and/or Bcc:) and date all personal email addresses used for City business by [a named individual]. This requests specifically seeks, the To:, From:, Cc:, and Bcc: address fields, the Date and Time that the message was sent and/or received, and whether or not there was an attachment, and if there was an attachment, the full name of the attachment. This requests specifically requests that the export be provided in ONLY .CSV or .XLSX form.

Carol Ann Desiderio SPR24/2781 Page 5 November 5, 2024 [22] Please extract all text messages of City business on any device, including any personal device of [a named individual], this request specifically seeks text messages both sent and received. Please extract all voice mail messages of City business on any personal device of [the named individual], this request specifically seeks both the voice recording and any renderings of said recordings including but not limited to transcriptions, text messages and/or email messages. This requests specifically requests that the extract be provided in the original format, machine readable, and not screenshots or .pdf format. [23] Please extract all text messages of City business on any device, including any personal device of [a named individual], this request specifically seeks text messages both sent and received. Please extract all voice mail messages of City business on any personal device of [the named individual], this request specifically seeks both the voice recording and any renderings of said recordings including but not limited to transcriptions, text messages and/or email messages. This requests specifically requests that the extract be provided in the original format, machine readable, and not screenshots or .pdf format. [24] Please extract the author and all recipients (To:, Cc:, and/or Bcc:) and date all personal email addresses used for City business by [a named individual]. This requests specifically seeks, the To:, From:, Cc:, and Bcc: address fields, the Date and Time that the message was sent and/or received, and whether or not there was an attachment, and if there was an attachment, the full name of the attachment. This requests specifically requests that the export be provided in ONLY .CSV or .XLSX form. [25] Please extract all public records of City business on any personal device of by [a named individual] including but not limited the device with [a specified] phone number ..., this request specifically seeks but is not limited to documents, communications, images, and any other Public Records created, received and/or stored on any device of [the named individual]. Please extract all text messages of City business on any device, including any personal device of [the named individual] including but not limited the device with [a specified] phone number ..., this request specifically seeks text messages both sent and received. Please extract all voice mail messages of City business on any personal device of by [the named individual] including but not limited the device with [a specified] phone number ..., this request specifically seeks both the voice recording and any renderings of said recordings including but not limited to transcriptions, text messages and/or email messages. [26] Please extract the author and all recipients (To:, Cc:, and/or Bcc:), date (but not the body or attachments) from the most recent 75 emails sent to or received by the below email addresses [list of 8 email addresses] where the email address appears as either/or both the author or recipient (To:, Cc:, and/or Bcc:). This request also seeks all responsive calendar items, including invitations,

Carol Ann Desiderio SPR24/2781 Page 6 November 5, 2024 declinations, and/or acceptances. This requests specifically seeks, the To:, From:, Cc:, and Bcc: address fields, the Date and Time that the message was sent and/or received, and whether there was or was not an attachment. This requests specifically requests that the export be provided in ONLY .CSV or .XLSX form. Previous Petition These requests were the subject of a previous petition from the City. See SPR24/2625 Determination of the Supervisor of Records (September 25, 2024). In my September 25th determination, I found that the City had established good cause for a time extension of 30 business days, and that the City may assess a fee for segregation and redaction of the responsive records. Concurrent with its petition, the City responded to the requestor on September 18, 2024, providing a fee estimate. Objecting to the fees, the requestor petitioned this office, and this appeal, SPR24/2781, 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

Carol Ann Desiderio SPR24/2781 Page 7 November 5, 2024 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). The City’s September 18th Fee Estimate In its September 18, 2024 response, the City provides a total fee estimate of $103,105.50. In support of its fee estimate, the City provides the following information regarding each of the 26 requests: [1] ... Open Commonwealth already requested the last 50 text messages from this individual in a previous request, which Malden submitted a fee petition for. The Supervisor declined to opine on the fee petition because Open Commonwealth stated it was modifying its request. See SPR 24/2320. Instead, Open Commonwealth has frivolously enlarged its request to the last 300 text messages. The search process here involves going one-by-one through each text sent by the Mayor until the last 300 text messages regarding official City business on the Mayor’s cell phone have been identified. 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). If any redactions are required, Malden will have to screenshot the text, convert the screenshot to a pdf, and redact the pdf before production. Accordingly, Malden estimates that it will take 9 hours (3 hours per 100 texts) to search, review, and redact any responsive records. [2] ... Open Commonwealth already requested the last 50 text messages from each of these individuals in a previous request, which Malden submitted a fee petition for. The Supervisor declined to opine on the fee petition because Open

Carol Ann Desiderio SPR24/2781 Page 8 November 5, 2024 Commonwealth stated it was modifying its request. See SPR 24/2320. Instead, Open Commonwealth has frivolously enlarged its request to the last 100 text messages. The search process here involves going one-by-one through each text sent by each individual until the last [100] text messages regarding official City business have been identified. The texts may contain student record information protected by FERPA and Exemption (a) of the Public Records Law, as many of these employees interact with the School Department in some capacity. The texts may also contain attorney-client privileged information, as many of these employees often communicate 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, or share 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 these employees may communicate such information to City employees, like Human Resources. If any redactions are required, Malden will have to screenshot the text, convert the screenshot to a pdf, and redact the pdf before production. Accordingly, Malden estimates that it will take 18 hours (3 hours per 100 texts) to search, review, and redact any responsive records.... [3] ... Open Commonwealth already submitted a request for similar information in a previous request, which Malden submitted a fee petition for. The Supervisor declined to opine on the fee petition because Open Commonwealth stated it was modifying its request. See SPR 24/2320. Instead, Open Commonwealth has frivolously enlarged its request. 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). Malden estimates that it will take 9 hours (3 hours per phone) to locate all responsive information and determine if they relate to City business, review, and redact any responsive records.... [4] ... Malden likely only possesses one record responsive to this request – the requested 2020 email. 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 (c). Malden estimates this process will take 15 minutes. [5] ... Malden does not possess any records responsive to this request.

Carol Ann Desiderio SPR24/2781 Page 9 November 5, 2024 [6] ... Malden conducted a search which produced an extract of responsive information with 18,074 rows. 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. Malden estimates that this will take 25.1 hours (one minute per 12 rows of email information within the extract). [7] ... Malden will need to perform 8 separate searches to obtain the requested extracts. 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 employees listed in the request. As such, each line needs to be reviewed for personal email addresses to redact. Malden estimates that this will take 10 hours based on its anticipated number of rows (one minute per 12 rows of email information within the extract). [8] ... Malden conducted a search which identified 2,535 emails which may be responsive to the request. 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). Malden anticipates that it will take 42.25 hours (1 minute per email) to review and redact all responsive records. [9] ... Open Commonwealth already requested this information in previous requests on July 18, 2024 and August 6, 2024, except those requests only requested the last 50 emails. Malden responded with a fee and time petition. See SPR 24/2365. Here, Open Commonwealth has frivolously enlarged its request to the latest 100 emails to or from the same email addresses. 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 employees listed in the request. As such, each line needs to be reviewed for personal email addresses to redact. Consistent with its previous response, Malden requires payment of its $262.50 search time fee for the previous request and estimates that it will take 3 more hours to review and redact the responsive records based on a sample performed on Open Commonwealth’s August 1 request for similar information. ... [10] ... Open Commonwealth already requested this information in a previous request. Malden responded with a fee and time petition, and the Supervisor

Carol Ann Desiderio SPR24/2781 Page 10 November 5, 2024 granted Malden’s fee and time petition. SPR24/2366. Here, Open Commonwealth has frivolously repeats the same request. Malden maintains its fee estimate from its previous fee petition – 53.62 hours for review and redaction of personal email addresses. [11] ... Open Commonwealth already requested this information in a previous request. Malden responded with a fee and time petition which is currently pending in the Supervisor’s office. SPR 24/2596. Malden maintains its fee estimate from its previous fee petition – 50 hours to review and redact personal email address in the 30,000 rows of responsive information in the extract. [12] ... Malden has no way of estimating how many responsive texts and voicemails exists without individually going through each text and voicemail message of [the named individual], the City’s Parking Director, to identify if any relate to City business. Malden anticipates that this search process will be very time extensive. If any responsive records were located, they would have to be reviewed for redactions. The texts may contain attorney-client privileged information, as this employee occasionally 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). If any redactions are required, Malden will have to screenshot the text, convert the screenshot to a pdf, and redact the pdf before production. Malden conservatively estimates that it will take 300 hours to search, review and redact any responsive records. [13] ... This information was already requested in Request #2 above.... Malden has no way of estimating how many responsive texts and voicemails exists without individually going through each text and voicemail message of [the named individual], the Special Assistant to the Mayor, to identify if any relate to City business. Malden anticipates that this search process will be very time extensive. If any responsive records were located, they would have to be reviewed for redactions. The texts may contain attorney-client privileged information, as this employee occasionally 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

Carol Ann Desiderio SPR24/2781 Page 11 November 5, 2024 contain the personal email address, personal phone number, or home address of other City employees, information protected by Exemption (o). If any redactions are required, Malden will have to screenshot the text, convert the screenshot to a pdf, and redact the pdf before production. Malden conservatively estimates that it will take 300 hours to search, review and redact any responsive records. [14] ... This information was already requested in Request #2 above.... Malden has no way of estimating how many responsive texts and voicemails exists without individually going through each text and voicemail message of [the named individual], the City Controller, to identify if any relate to City business. Malden anticipates that this search process will be very time extensive. If any responsive records were located, they would have to be reviewed for redactions. The texts may contain attorney-client privileged information, as this employee 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). If any redactions are required, Malden will have to screenshot the text, convert the screenshot to a pdf, and redact the pdf before production. Malden conservatively estimates that it will take 300 hours to search, review and redact any responsive records.... [15] ... Malden has no way of estimating how many responsive emails exist without individually going through each email of [the named individual], the City Harbor Master, to identify if any relate to City business. Malden anticipates that this search process will be very time extensive. If any responsive records were located, they would have to be reviewed for redactions. The emails 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 emails 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 emails may also contain the personal email address, personal phone number, or home addresses of City employees, information protected by Exemption (o). If any redactions are required, Malden will have to convert the email to a pdf, and redact the pdf before production. Malden conservatively estimates that it will take 300 hours to search, review and redact any responsive records. [16] ... Malden has no way of estimating how many responsive emails exist

Carol Ann Desiderio SPR24/2781 Page 12 November 5, 2024 without individually going through each email of [the named individual], the City Council President, to identify if any relate to City business. Malden anticipates that this search process will be very time extensive. If any responsive records were located, they would have to be reviewed for redactions. The emails 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 emails 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 emails may also contain the personal email address, personal phone number, or home addresses of City employees, information protected by Exemption (o). If any redactions are required, Malden will have to convert the email to a pdf, and redact the pdf before production. Malden conservatively estimates that it will take 300 hours to search, review and redact any responsive records. [17] ... Malden has no way of estimating how many responsive texts and voicemails exists without individually going through each text and voicemail message of [the named individual], a School Committee member, to identify if any relate to City business. Malden anticipates that this search process will be very time extensive. If any responsive records were located, they would have to be reviewed for redactions. The texts may contain student record information protected by FERPA, as this School Committee member sometimes communicates with school parents about their children. The texts 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 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 individual may communicate about such information with City employees. The texts may also contain the personal email address, personal phone number, or home address of City employees, information protected by Exemption (o). If any redactions are required, Malden will have to screenshot the text, convert the screenshot to a pdf, and redact the pdf before production. Malden conservatively estimates that it will take 300 hours to search, review and redact any responsive records. [18] ... This request is already submitted a day prior in Request #15 above. Malden repeats its response and fee petition. Malden has no way of estimating how many responsive emails exist without individually going through each email of [the individual], the City Council President, to identify if any relate to City business. Malden anticipates that this search process will be very time extensive. If any responsive records were located, they would have to be reviewed for redactions. The emails may contain attorney-client privileged information, as this

Carol Ann Desiderio SPR24/2781 Page 13 November 5, 2024 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 emails 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 emails may also contain the personal email address, personal phone number, or home addresses of City employees, information protected by Exemption (o). If any redactions are required, Malden will have to convert the email to a pdf, and redact the pdf before production. Malden conservatively estimates that it will take 300 hours to search, review and redact any responsive records. [19] ... Malden has no way of estimating how many responsive texts and voicemails exists without individually going through each text and voicemail message of [the individual], a member of the City Council, to identify if any relate to City business. Malden anticipates that this search process will be very time extensive. If any responsive records were located, they would have to be reviewed for redactions. The texts may contain attorney-client privileged information, as this employee 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 about such information to City employees. The texts may also contain the personal email address, personal phone number, or home address of other City employees, information protected by Exemption (o). If any redactions are required, Malden will have to screenshot the text, convert the screenshot to a pdf, and redact the pdf before production. Malden conservatively estimates that it will take 300 hours to search, review and redact any responsive records. [20] ... Malden has no way of estimating how many responsive texts and voicemails exists without individually going through each text and voicemail message of [the individual], a member on the City’s Cannabis Licensing and Enforcement Commission, to identify if any relate to City business. Malden anticipates that this search process will be very time extensive. If any responsive records were located, they would have to be reviewed for redactions. The texts 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 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, like personal cell phone numbers, email addresses, and other

Carol Ann Desiderio SPR24/2781 Page 14 November 5, 2024 private information of applicants for marijuana licensing. If any redactions are required, Malden will have to screenshot the text, convert the screenshot to a pdf, and redact the pdf before production. Malden conservatively estimates that it will take 300 hours to search, review and redact any responsive records. [21] ... There are no records responsive to your request. [22] ... Malden has no way of estimating how many responsive texts and voicemails exists without individually going through each text and voicemail message of [the individual], the Director of Finance and Operations for Malden Public Schools, to identify if any relate to City business. Malden anticipates that this search process will be very time extensive. If any responsive records were located, they would have to be reviewed for redactions. The texts may contain student record information protected by FERPA, as this employee sometimes communicates with school parents about their children. The texts 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 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 individual may communicate about such information with City employees. The texts may also contain the personal email address, personal phone number, or home address of City employees, information protected by Exemption (o). If any redactions are required, Malden will have to screenshot the text, convert the screenshot to a pdf, and redact the pdf before production. Malden conservatively estimates that it will take 300 hours to search, review and redact any responsive records. [23] ... Malden has no way of estimating how many responsive texts and voicemails exist without individually going through each email of [the named individual], the City Harbor Master, to identify if any relate to City business. Malden anticipates that this search process will be very time extensive. If any responsive records were located, they would have to be reviewed for redactions. 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). If any redactions are required, Malden will have to screenshot the text, convert the screenshot to a pdf, and redact the pdf before production. Malden conservatively estimates that it will take 300 hours to search,

Carol Ann Desiderio SPR24/2781 Page 15 November 5, 2024 review and redact any responsive records. [24] ... Malden has no way of estimating how many responsive texts and voicemails exist without individually going through each email of [the named individual], the City Harbor Master, to identify if any relate to City business. Malden anticipates that this search process will be very time extensive. If any responsive records were located, they would have to be reviewed for redactions. 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). If any redactions are required, Malden will have to screenshot the text, convert the screenshot to a pdf, and redact the pdf before production. Malden conservatively estimates that it will take 300 hours to search, review and redact any responsive records. [25] ... Open Commonwealth already requested the last 50 text messages from the Mayor in a previous request, which Malden submitted a fee petition for. The Supervisor declined to opine on the fee petition because Open Commonwealth stated it was modifying its request. See SPR 24/2320. Then, Open Commonwealth frivolously enlarged its request to the last 100 text messages in Request #1 above on September 4, 2024 at 1:36 PM. Here, Open Commonwealth frivolously again enlarges its request. Malden has no way of estimating how many responsive texts, voicemails, or public records exist without individually going through every text or voicemail of the Mayor, to identify if any relate to City business. Malden anticipates that this search process will be very time extensive. If any responsive records were located, they would have to be reviewed for redactions. The records 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 records 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 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 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

Carol Ann Desiderio SPR24/2781 Page 16 November 5, 2024 Exemption (o). If any redactions are required, Malden will have to screenshot the text, convert the screenshot to a pdf, and redact the pdf before production. Malden conservatively estimates that it will take 300 hours to search, review and redact any responsive records. [26] ... Again, Open Commonwealth already requested this information in previous requests on July 18, 2024 and August 6, 2024, except those requests only requested the last 50 emails from or to these emails. Malden responded with a fee and time petition. See SPR 24/2365. Open Commonwealth then frivolously requested the same information from the same email addresses in Request #9 above, this time enlarged to the latest 100 emails. Here, Open Commonwealth has frivolously submitted the same request with several more email addresses originally contained in the July 18, 2024 and August 6, 2024 requests, this time requesting the last 75 emails to and from the same email addresses. 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 employees listed in the request. As such, each line needs to be reviewed for personal email addresses to redact. Consistent with its previous response, Malden requires payment of its $262.50 search time fee for the previous request and estimates that it will take 6 more hours to review and redact the responsive records based on a sample performed on Open Commonwealth’s August 1 request for similar information. Finally, the City summarizes its entire fee estimate for all 26 requests by explaining the following: 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. Open Commonwealth has submitted 26 public records requests within a span of ten business days, many of which have subparts as detailed above. Malden argues given that many are interrelated and given the temporal proximity, they should be treated as one large request. The total estimated hours to respond to these requests is 4,126.22 hours. After subtracting the first two (2) hours, 4,124.22 hours for search, segregation and redaction at the rate of $25 per hour, yields a total fee estimate of $103,105.50.

Carol Ann Desiderio SPR24/2781 Page 17 November 5, 2024 Please be advised that in Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, the Suffolk Superior Court, in its Memorandum of Decision and Order on Defendants’ Motion to Dismiss, stated: [The requester] has a right to seek public records from his government, provided he does so in a reasonable manner. [The agencies], in turn, have a right not to be inundated with drain-the-ocean records requests, provided they fulfill the basic expectations of the [Public Records Law] in a fair and transparent manner. See Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, Suffolk Sup. No. 2284CV02061-C, at 3 (February 14, 2023). The Court in Friedman noted, “the extraordinary volume of records called for in this case has compelled the Defendants to produce responsive materials in a ‘rolling’ fashion, rather than in accordance with deadlines contemplated by the [Public Records Law].” Id. at 1. The Court stated that: [T]he parties shall be expected to agree upon, to the greatest extent possible, the following: (a) appropriate definitions, time frames, and parameters regarding substance and scope for the identification of requested documents; (b) appropriate search terms to be used for the retrieval of responsive documents; (c) a reasonable time frame for the production of requested documents, if the statute’s presumptive deadlines are not realistic; (d) appropriate rules to govern the withholding of documents falling within the scope of a statutory privilege or privacy doctrine; and (e) an appropriate methodology for computing the reasonable fees that may be charged for responsive document production. Id. at 2. In addition, please be aware that the request must reasonably describe the specific records sought. See G. L. c. 66, § 10(a)(i). In a recent case, the Superior court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. l 784CV02087, at 2 (January 23, 2019). This office encourages the requestor and the City to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce the records sought more efficiently and affordably).

Carol Ann Desiderio SPR24/2781 Page 18 November 5, 2024 Conclusion If outstanding issues remain after the requestor and the City communicate further as described above, the requestor may file an appeal within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency James Donnelly, Esq.