Malden News Network v. Malden, City of - Office of the City Solicitor (SPR 20251295)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 12, 2025 SPR25/1295 Joanne Perperian Public Records Access Officer City of Malden Office of the City Solicitor 215 Pleasant Street, Suite 420 Malden, MA 02148 Dear Ms. Perperian: On May 8, 2025, this office received your petition on behalf of the City of Malden (City) seeking an extension of time to produce records and 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 City furnished a copy of the petition to the requestor, Malden News Network. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On April 25, 2025, the requestor sought “[f]or the timeframe 4/25/22 to 4/25/25, please provide public records documenting financial expenses, commitments and/or encumbrances for legal work of the City of Malden (including Malden Public Schools), related to any financial expenses associated with lawyers, paralegals or their billable staff in the following Mass Court cases: [six identified court dockets].” Petition 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 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; 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

Joanne Perperian SPR25/1295 Page 2 May 12, 2025 (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) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current Petition In its petition, the City requests “an additional 30 business days beyond the time specified under the statute (25 business days).” In support of its request, the City provides the following information: [G]iven the broad scope of the request and the volume of potentially responsive records which require detailed review and redaction, the City 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. [A]dditionally, the employee who will perform the search and recovery, segregation and redaction process have many other responsibilities which they cannot ignore. The City will be unable to complete its review, redaction, and production of records during normal business hours of operation without an extension. In an email to this Division on May 8, 2025, the requestor objects to the City’s petition for an extension of time, arguing “. . .[we] ask that you deny the time petition as requested...such a lengthy withholding of public records is neither in the public interest nor a reasonable request or allowance for the City of Malden. Thus, Malden has had this request for a significant amount of time already and further extensive delay in releasing this information is not in the public interest.” In light of the need to collect, segregate and examine the records, as well as the capacity of the City to produce the records without an extension, the City has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The City is granted an extension of 30 business days.

Joanne Perperian SPR25/1295 Page 3 May 12, 2025 Petition to assess fees – Municipalities The 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 or to charge in excess of $25 an hour for the provision of public 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 understanding 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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

Joanne Perperian SPR25/1295 Page 4 May 12, 2025 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). Current Petition In its petition, the City requests to charge a fee of $25 per hour “to produce and redact those records.” In support of its request, the City provides the following information: [T]he records sought in the request need to be reviewed, and potentially redacted. The City seeks the ability to charge for redactions under Exemption (d). These documents may require redactions in accordance with the exemption set forth at M.G.L. c. 66, s. 10A; nondisclosure of records containing attorney/client privilege. In an email to the City on May 8, 2025, the requestor states they “will drop by with payment today.” In light of the requestor’s May 8, 2025 email, I find it is unnecessary to opine on the portion of the City’s petition requesting to charge for time spent segregating or redacting responsive records. Conclusion As described above, I find that the City has established good cause for a time extension of 30 business days. In light of the above, it is unnecessary to opine on the City’s petition for permission to charge for time spent segregating or redacting responsive records. Please note, the requestor 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: Malden News Network