Commonwealth Transparency v. Malden, City of (SPR 20243465)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 15, 2025 SPR24/3465 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). On December 5, 2024, the requestor sought the following records from the period of “November 1, 2024 through the date that [the City] receive[s] this request”: [A]ll public records of any City business on any personal device of Gary Christenson, 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. The City responded on December 19, 2024, providing a fee estimate. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR24/3465, 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). 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 SPR24/3465 Page 2 January 15, 2025 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). The City’s December 19th Response In its December 19, 2024 response, the City provided a fee estimate of $1,825.00 and stated the following: 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

Carol Ann Desiderio SPR24/3465 Page 3 January 15, 2025 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. Accordingly, Malden estimates that it will take 75 hours to search for, review, and redact any responsive records. … 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. … After subtracting the first two (2) hours, 73 hours for search, segregation and redaction at the rate of $25 per hour, yields a fee estimate of $1,825.00. Malden is seeking approval of its estimate in a harassment, fee, and time petition to the Supervisor of Records. Current Appeal In the appeal petition, the requestor states, “Malden’s response was untimely, insufficient and improper and as a result they are barred from charging for the responsive records.” Active Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the ongoing litigation, City of Malden v. Manza Arthur, Supervisor of Records of the Public Records Divisions of the Office of William 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, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b).

Carol Ann Desiderio SPR24/3465 Page 4 January 15, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency James Donnelly, Esq. Felicia Vasudevan, Esq.