Commonwealth Transparency v. Malden, City of - Office of the City Clerk (SPR 20243388)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 27, 2024 SPR24/3388 Carol Ann Desiderio City Clerk City of Malden 215 Pleasant Street, Room 220 Malden, MA 02148 Dear Ms. Desiderio: On December 19, 2024, this office received the petition of Attorney James Donnelly, of Murphy, Hesse, Toomey & Lehane, LLP, 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). On December 5, 2024, the requestor sought the following records: For the Time Period of November 1, 2024 through the date that you receive this request: Please extract all public records of any City business on any personal device of [a named individual], this request specifically seeks text messages both sent and received, email messages, photographs, voicemail recordings and or transcripts, messages from any messaging service including but not limited to WhatsApp, and/or Signal, and/or Telegram, calendar entries, documents, spreadsheets. This requests specifically requests that the extract be provided in the original format, machine readable, and not screenshots or .pdf format. 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 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 SPR24/3388 Page 2 December 27, 2024 has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or 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 scope of redaction required to prevent unlawful disclosure, the capacity of the City to produce the request without the extension, and efforts undertaken by the City in fulfilling previous requests, the City has established good cause to permit an extension of

Carol Ann Desiderio SPR24/3388 Page 3 December 27, 2024 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). 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

Carol Ann Desiderio SPR24/3388 Page 4 December 27, 2024 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 In its petition, the City requests “to charge a fee of $25 per hour to produce the records,” and argues the following in support of its request to charge for segregation and redaction: The search process here involves going one-by-one through each text, email, photograph, and voicemail on any of the Mayor’s personal devices – amounting to thousands of records – until any record regarding City business dating back to November 1, 2024 has been identified. These 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 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 convert the record to a pdf, and redact the pdf before production. 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. Request for Relief In its petition, the City “submits this harassment petition to relieve it of its obligation to provide the records sought.” In support of its petition, the City provides the following information: This public records request is duplicative of prior public records requests submitted by OpenCommonwealth seeking public records of City business on the personal devices of the Mayor and other Malden officials and employees. For every prior request, Malden sought approval of its fee estimate from the Supervisor of Records and received approval of its fee petition, yet OpenCommonwealth did not pay Malden’s fee estimate. This continues OpenCommonwealth’s pattern of harassment of Malden – Open Commonwealth

Carol Ann Desiderio SPR24/3388 Page 5 December 27, 2024 often requests the same information despite the presence of an approved fee petition for those same records or similar records. The only purpose behind Open Commonwealth’s requests is to harass Malden, its officials, and its employees. Furthermore, 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 reconsideration 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). Moreover, the continuing harassment of Malden is already the subject of current and active litigation. See City of Malden v. Manza Arthur, Supervisor of Records of the Public Records Divisions of the Office of Wiliam Francis Galvin, Secretary of the Commonwealth, William Francis Galvin, Secretary of the Commonwealth and OpenCommonwealth (Bruce Friedman D/B/A OpenCommonwealth.org), Docket No. 2481CV03069. Mr. Friedman’s and Open Commonwealth’s requests continue the pattern of harassment that is the precise subject of the pending litigation. Accordingly, during the pendency of Malden’s lawsuit and in accordance with 950 CMR 32.08(2)(b)(1), Malden should be relieved of its obligation to respond to Mr. Friedman and OpenCommonwealth’s requests, as the Supervisor has consistently held. See, e.g., SPR21/1540; SPR21/1524; SPR21/1739; SPR21/1748; SPR21/1799. 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). 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.

Carol Ann Desiderio SPR24/3388 Page 6 December 27, 2024 However, in light of the above, I cannot grant the City’s petition seeking relief from its obligation to produce responsive records at this time. Please note, this office may deny an appeal if, in the opinion of the Supervisor of Records, the request is designed or intended to harass, intimidate, or assist in the commission of a crime. See 950 C.M.R. 32.08(2)(b)(2). 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.