Brian DeLacey v. Malden, City of - Office of the City Solicitor (SPR 20252819)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 1, 2025 SPR25/2819 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 September 25, 2025, this office received your petition on behalf of the City of Malden, (City) seeking an extension of time to produce records and requesting permission to assess fees for time spent segregating and 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, Brian DeLacey, of Malden News Network. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On September 11, 2025, Mr. DeLacey requested: [1] [S]egregable portion/s of the public records resulting from a query of email resulting in 19,771 emails used to generate what is commonly known as the “City’s Fee & Time Petition of 9/11/25” as follows: For each of the matching email records in the City’s 9/11/25 Petition, provide an extract (aka export or segregable portion) furnish segregable portions of these records particularly including these four email “fields”: Date, Time, Subject, Yes / No if there is one or more attachment[;] [2] [F]or any of the 19,771 identified emails in the aforementioned City Petition, please furnish the segregable portion (ie. an entire email address name) which includes any @CityOfMalden.org email address for each and every one of the email “fields” where case-insensitive “@CityOfMalden.org” appears within matching text (but not others like “@gmail.com”), in the manner which it is stored (ie. City of associated with or assigned to) each of the following four email “fields”: TO, FROM, CC, BCC[.] 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 SPR25/2819 Page 2 October 1, 2025 It is my understanding that the City has assigned reference number 2025-0303 to this request. Please note that in an email to this Office on September 26, 2025, Mr. DeLacey objected to the City’s petition. 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; (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). Request for Additional Time to Produce Responsive Records In its petition, the City requests “an additional 30 business days beyond the time specified under the statute (25 business days) – for a total of 55 business days from the date of receipt of payment for the work…” and provides the following information in support of its request: Given 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.

Joanne Perperian SPR25/2819 Page 3 October 1, 2025 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 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 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. 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. 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; 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

Joanne Perperian SPR25/2819 Page 4 October 1, 2025 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). Petition to Assess Fees In its petition, in addition to charging for segregation and redaction under attorney-client privilege, the City argues the following in support of its request to charge for segregation and redaction under Exemptions (c) and (d) of the Public Records Law: Exemption (c)… In terms of the second clause of the privacy exemption, it applies to requests for records that implicate privacy interests. Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm’r of the Real Property Dep’t of Boston, 380 Mass. 623, 625 (1980). Exemption (d)… The exemption is intended to avoid release of materials that could taint the deliberative process if prematurely disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. Factual reports which are reasonably complete and inference which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. Only portions of records that possess a deliberative or policymaking character and relate to an ongoing deliberative process are exempt from mandatory disclosure. A sample review of the exported data revealed personal email addresses in the “TO” and “FROM” fields, as well as attorney-client privileged information in the “SUBJECT” field as requested. Therefore, records responsive to this request will need to be reviewed and redacted to the extent they contain such information.

Joanne Perperian SPR25/2819 Page 5 October 1, 2025 Subsequent to the opening of this petition, in an email to Mr. DeLacey and this office on September 30, 2025, the City provided the following additional information: The City is looking to redact certain records under Exemptions (c) and (d). As noted on page (3) of the petition, in addition to personal email addresses, our review of the data identified that some information within the “subject” field contains attorney work product. Based on the information provided in its fee 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 segregation or redaction. 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 segregation and redaction. Conclusion Accordingly, I find the City has established good cause for a time extension of 30 business days as described above. Additionally as described above, I find that to the extent the responsive records contain the exempt information as described above, the City may assess a fee for segregation and redaction. See G. L. c. 66, § 10(d)(iv). Mr. DeLacey is advised that he may appeal the City’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Mr. DeLacey 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: Brian DeLacey