Commonwealth Transparency v. Malden, City of (SPR 20242990)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 15, 2024 SPR24/2990 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”) appealing the response of the City of Malden (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). In two separate requests, on August 30, 2024, the requestor sought the following records: [1] All public records created, received, or otherwise found in the email address/account [identified email address]. This request also specifically seeks all public records which were created, received, or otherwise found in the email address/account [identified email address] which have been subsequently relinquished to any custodian(s) of public records in Malden[;] [2] All public records created, received, or otherwise found in the email address/account [identified email address]. This request also specifically seeks all public records which were created, received, or otherwise found in the email address/account [identified email address] which have been subsequently relinquished to any custodian(s) of public records in Malden. Prior Petition This request was the subject of a prior petition. See SPR24/2610 Determination of the Supervisor of Records (September 20, 2024). In my September 20th determination, I found that the City had established good cause for a time extension of 30 days but denied the City’s fee petition for its review and redaction on the basis that it was untimely. 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 SPR24/2990 Page 2 November 15, 2024 The City responded on November 1, 2024, providing a fee estimate. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR24/2990, 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). 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).

Carol Ann Desiderio SPR24/2990 Page 3 November 15, 2024 The City’s November 1st Response In its November 1, 2024 response, the City provided a fee estimate of $6,387.00 and stated the following: On September 16, 2024, Malden responded to [the requestor’s] requests. It informed [the requestor] that [a named individual], a School Committee member, had over 14,000 emails on his personal email which may be responsive to the request. Malden explained that the potentially responsive emails would require review and redaction, as they likely contained attorney-client privileged information and student record information protected by Exemption (a)… Malden’s response also informed [the requestor] that [a named individual] had 1,449 emails to Request #2. It explained that the responsive emails would require review and redaction, as they likely contained social security information, CORI information, and personal banking information which is protected by Exemption (a), G.L. c. 6, § 167, and Exemption (c) to the Public Records Law. … Because Malden must review the responsive records for redactions “required by law,” it provides a fee estimate below for redacting exempt material pursuant to Exemption (a) and the attorney-client privilege. … 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. … With respect to Request #1, the records responsive to [the requestor’s] request likely contain information exempt from disclosure pursuant to the attorney-client privilege. In his role as a member of the Malden School Committee which regularly seeks advice from its attorneys, [a named individual]’s emails often contain the content of discussions between Malden and its attorneys, for purpose of obtaining legal advice, which has not been shared with the public and is therefore protected by the attorney-client privilege. Additionally, [a named individual’s] emails often contain personal identifying information of public school students, as he regularly communicates with school administration, parents, and members of the public about school issues. This information is exempt from disclosure pursuant to Exemption (a) of the Public Records Law, FERPA, M.G.L. c. 71, §§34A to 34H and 603 CMR 23.00 et seq. Malden needs to review every email which may be responsive to the request to determine whether any contain exempt information as “required by law.” Malden estimates that it will take 233.3 hours (14,000 emails x 1 minute per email) to review all records which may be responsive to the request and redact information exempt from disclosure under Exemption (a) and the attorney-client privilege. …

Carol Ann Desiderio SPR24/2990 Page 4 November 15, 2024 With respect to Request #2, the records responsive to your request likely contain criminal offender record information (“CORI”) exempt from disclosure pursuant to Exemption (a) of the Public Records Law and G.L. c. 6, § 167. In his role as a member of Malden’s Cannabis Licensing and Enforcement Commission, Mr. Summers regularly communicates about and receives applications of members of the public seeking permits, and those applications contain CORI applications and background checks. Malden needs to review every email which may be responsive to the request to determine whether any contain exempt information as “required by law.” Malden estimates that it will take 24.2 hours (1,449 emails x 1 minute per email) to review all records which may be responsive to the request and redact information exempt from disclosure under Exemption (a). … The total estimated hours to respond to these requests is 257.5 hours. After subtracting the first two (2) hours, 255.5 hours for redaction of information exempt as “required by law” at the rate of $25 per hour, yields a total fee estimate of $6,387.00. Current Appeal In his appeal petition, the requestor states, “[the City] failed to provide a fee estimate within 10 business days as required by law and as such is barred from charging for the requested records. Further, the attached fee estimate claims improper exemptions, improper time for segregation and redactions and exaggerated estimates. Wherefore OpenCommonwealth requests that the SPR find and Order Malden to provide all of the requested records without charge and without delay.” Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k).

Carol Ann Desiderio SPR24/2990 Page 5 November 15, 2024 Additionally, the City’s fee estimate response is timely, because the requestor sent his original request on August 30, 2024, the tenth business day to provide an initial response was September 17, 2024, and the City provided its initial fee estimate on September 17, 2024. As such, I find the City may assess a fee for this records request. Reasonableness of the fee estimate Where the City provided a response within 10 business, it is necessary to review the reasonableness of the City’s fee estimate. In this case, where the City has explained that it will charge for segregation and redaction of the records, and has explained the amount of time required to segregate and redact records, and confirmed that the lowest paid individual with the necessary skill is paid more than $25 per hour, I find the City has met its burden to establish that it would take this amount of time to prepare the responsive records for production. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). With regard to the requestor’s objections regarding the City’s claims of redactions, please be advised that where the City has yet to produce the records, I find these matters cannot be addressed at this time, as the contents of these records are unclear. Once records are provided, the requestor may appeal the substantive nature of the City’s response within ninety calendar days. See 950 C.M.R. 32.08(1). I encourage the requestor and the City to communicate in order to facilitate producing records efficiently and affordably. The requestor may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. Conclusion As set forth above, I find the City has met its burden in responding to the request at this time. Any revision to the request would result in the requirement to issue a revised fee estimate. Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency