Malden News Network v. Malden, City of - Public Schools (SPR 20250203)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 28, 2025 SPR25/0203 Janell Summers Records Access Officer Malden Public Schools 110 Pleasant Street Malden, MA 02148 Dear Ms. Summers: On January 23, 2025, this office received your petition on behalf of the Malden Public Schools (School) seeking permission to charge for time spent segregating or redacting 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, it is my understanding that the School furnished a copy of the petition to the requestor, Malden News Network (“requestor”). On January 8, 2025, the requestor sought the following: Please provide any and all emails sent or received by any member of the Malden School Committee from January 6, 2025 to January 8, 2025 (inclusive of all 24 hours, and end dates). In addition, please provide the original source document as well as any format to which it was exported or transformed - including all metadata of any such format corresponding such as Microsoft Word, PDF, or HTML) - for the roughly seven-page document released on letterhead of [an identified individual], dated January 8, 2025, Re: Open Meeting Law Complaints, and referring to “Date of Complaints” designated as December 18, 2024. This request is NOT limited to a scanned copy of [identified individual]’s letter, which was distributed in response to Open Meeting Law Complaints. It also seeks “the original source document and any export format, with all metadata, in the format that it was originally created.” On January 23, 2025, the requestor sent a correspondence objecting to the School’s petition. 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

Janell Summers SPR25/0203 Page 2 January 28, 2025 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 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).

Janell Summers SPR25/0203 Page 3 January 28, 2025 Current Petition In its petition, the School requests “to charge a fee to search for the records sought because the time needed to search for and identify responsive records exceeds the allowed two free hours in accordance with 950 CMR 37.02(2)(m)(1).” [sic] Malden has identified approximately 133 emails which may be responsive to your Request, many of which contain multiple pages of information. Please be advised that Malden anticipates that the responsive records contain personally identifying information of students exempt from disclosure pursuant to Exemption (a) of the Public Records Law, FERPA, and G.L. c. 71, sec. 34D, as well as attorney-client privileged information and information regarding collective bargaining strategy exempt from disclosure pursuant to Exemption (a) of the Public Records Law and G.L. c. 30A, § 21(a)(3). Please be advised, records custodians may assess fees for time spent segregating or redacting records where such segregation or redaction is required by law. See 950 C.M.R. 32.07(2)(d) (stating that fee for segregation or redaction is permissible when approved by Supervisor or when required by law). Where the School only seeks to assess fees as required by law under Exemption (a) of the Public Records Law, I find it unnecessary to opine on whether the School may assess fees for segregating and redacting the records. Conclusion In light of the above, I find it unnecessary to opine on the School’s fee petition. Further, this office encourages the requestor and the School to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). Sincerely, Manza Arthur Supervisor of Records cc: Malden News Network