Commonwealth Transparency v. Malden, City of - Office of the City Clerk (SPR 20242832)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 28, 2024 SPR24/2832 Carol Ann Desiderio City Clerk City of Malden 215 Pleasant Street Malden, MA 02148 Dear Ms. Desiderio: I have received the petition of Commonwealth Transparency (“requestor”/Open Commonwealth) 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). From September 23, 2024 through October 7, 2024, the requestor submitted the following requests: [1.] 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 [a 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. [2.] 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]. [3.] 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] [4.] 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]. [5.] 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 [a named individual], this request specifically seeks both the voice recording and any renderings of said recordings including but 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 SPR24/2832 Page 2 October 28, 2024 not limited to transcriptions, text messages and/or email messages. [6.] 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 or received by the below 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. [7.] 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 or received by the below 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. [8.] 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]. [9.] 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]. [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]. [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]. [12.] 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]. [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 [a 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. [14.] 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 or received by the below email addresses… This request specifically includes calendar items,

Carol Ann Desiderio SPR24/2832 Page 3 October 28, 2024 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. Prior Petition This request was the subject of a prior petition. See SPR24/2777 Determination of the Supervisor of Records (October 15, 2024). In my October 15th 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. However, I was unable to grant the City’s request for relief from the obligation to produce responsive records. The City responded on October 7, 2024, providing a fee estimate. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR24/2832, 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 estimate – 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).

Carol Ann Desiderio SPR24/2832 Page 4 October 28, 2024 Municipalities may not assess a fee for the first (two) 2 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). The City’s October 7th Response In its October 7, 2024 response, the City provided a fee estimate of $83,462.50 and stated the following: [1.] Malden has no way of estimating how many responsive texts and voicemails exists without individually going through each text and voicemail message of [a named individual] 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. [2.] Malden has no way of estimating how many responsive emails exist without individually going through each email of [a named individual] 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 the personal email address of members of the public, information protected by Exemption (c), or of City employees, information protected by Exemption (o). Malden conservatively estimates that it will take 300 hours to search, review and redact any responsive records.

Carol Ann Desiderio SPR24/2832 Page 5 October 28, 2024 [3.] … 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). Malden conservatively estimates that it will take 300 hours to search, review and redact any responsive records. [4.] … 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). Malden conservatively estimates that it will take 300 hours to search, review and redact any responsive records. [5.] … If any responsive records were located, they would have to be reviewed for redactions. 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). 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. [6.] 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… Open Commonwealth then frivolously requested the same information from the same email addresses in a request on September 15, 2024, this time enlarged to the latest 75 emails… Here, Open Commonwealth has frivolously submitted the same request, this time requesting the last 100 emails to and from the same email addresses… The responsive records may contain the 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. [7.] Open Commonwealth requested this information in previous requests on July 18, 2024, August 1, 2024, August 2, 2024, and August 29, 2024. The July 18,

Carol Ann Desiderio SPR24/2832 Page 6 October 28, 2024 August 1, and August 2 requests sought the most recent 50 emails, while the August 29 request sought the most recent 100 emails for the “councildocket” and “athletics” email addresses… Here, Open Commonwealth has frivolously submitted the same exact request for the “councildocket” and “athletics” emails, and expanded its requested for the “parkingvoicemail” and “smucciniburke” from 50 to 100 emails. The responsive records may contain the personal email addresses of members of the public, protected by Exemption (c), or other employees, protected by Exemption (o), communicating with the City email addresses listed in the request. [8.] …The records 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). Malden conservatively estimates that it will take 300 hours to search, review and redact any responsive records. [9.] The emails may contain the personal email address of members of the public, information protected by Exemption (c), or of other City employees, information protected by Exemption (o). Malden conservatively estimates that it will take 300 hours to search, review and redact any responsive records. [10.] …The emails may contain the personal email address of members of the public, information protected by Exemption (c), or of other City employees, information protected by Exemption (o). Malden conservatively estimates that it will take 300 hours to search, review and redact any responsive records. [11.] …The emails may contain the personal email address of members of the public, information protected by Exemption (c), or of other City employees, information protected by Exemption (o). Malden conservatively estimates that it will take 300 hours to search, review and redact any responsive records. [12.] …The emails may contain the personal email address of members of the public, information protected by Exemption (c), or of other City employees, information protected by Exemption (o). Malden conservatively estimates that it will take 300 hours to search, review and redact any responsive records. [13.] 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 members of the public, information protected by Exemption (c), or of City employees,

Carol Ann Desiderio SPR24/2832 Page 7 October 28, 2024 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. [14.] Yet again, Open Commonwealth already requested this information in previous requests on July 18, 2024 and August 1, 2024, except those requested the most recent 50 emails. Malden has repeatedly responded with a consistent fee and time petition. Here, Open Commonwealth has frivolously submitted the same exact request, this time enlarging its request to the most recent 100 emails. The responsive records may contain the personal email addresses of members of the public, protected by Exemption (c), or of other City employees, protected by Exemption (o), communicating with the City email addresses listed in the request. As such, each line needs to be reviewed for personal email addresses to redact. … 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 requestor] has submitted 14 public records requests within a span of ten business days… Given that many are interrelated and given the temporal proximity, Malden treats them as one large request. The total estimated hours to respond to these requests is 3,340.5 hours. After subtracting the first two (2) hours, 3,338.5 hours for search, segregation and redaction at the rate of $25 per hour, yields a total fee estimate of $83,462.50. Current Appeal In his appeal petition, the requestor states the following: Open Commonwealth requests that the SPR find and Order the following: [1.] That the City of Malden retrieve and maintain the public records that exist on the requested email address(es). [2.] That Malden search for and provide the responsive records once they collect, manage and maintain same. [3.] That Malden provide the responsive records without delay and without charge as they failed to provide a good‐faith response within 10 business days as required under Massachusetts Public Records Law M.G.L. c66, §§ 10‐10A

Carol Ann Desiderio SPR24/2832 Page 8 October 28, 2024 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 SPR24/2832 Page 9 October 28, 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