Cogliano, Ronald v. Department of Labor Standards (SPR 20140278)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 17, 2014 SPR14/278 Ms. Jean Zeiler, Esq. Department of Labor Standards 19 Staniford Street, 2nd Floor Boston, MA 02114 Dear General Counsel Zeiler: This office has received the petition of Ronald N. Cogliano appealing the response ofthe Department of Labor Standards (DLS) to his request for public records. See G. L. c. 66, § 10(b); see also 950 C.M.R. 32.08(6). Specifically, Mr. Cogliano requested copies of"the most recent applicable collective bargaining agreements between all building trade unions and employers affected by Massachusetts Prevailing Wage Law." Mr. Cogliano requests the records be provided in electronic form if available. In its initial response, DLS provided Mr. Cogliano with a fee estimate for the cost to be incurred in providing copies of responsive records. In a June 6, 2014 email to an attorney on my staff, you stated that DLS identified sixty-three (63) collective bargaining agreements that are responsive to Mr. Cogliano's request. In a July 3, 2014 letter from you, DLS revised its response to Mr. Cogliano and notified him that it was withholding portions of the responsive agreements from disclosure pursuant to Exemption (g) of the Public Records Law. DLS stated in the letter that it will disclose the portions of the agreements related to prevailing wage rates, but is withholding all other information included within these agreements. It is important to note that Mr. Cogliano requested copies of each responsive agreement in its entirety. Exemption (g) Exemption (g) of the Public Records Law applies to: trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Jean Zeiler, Esq. SPR14/278 Page Two September 17, 2014 confidentiality; but this subclause shall not apply to information submitted as required by law or as a condition ofreceiving a governmental contract or other benefit G. L. c. 4, § 7(26)(g) Information submitted to a Massachusetts governmental entity is protected from mandatory disclosure only if it meets all criteria contained in the exemption. If a custodian fails to meet its burden in the applicability of any one criterion, a claim of withholding under Exemption (g) must fail. One of the mandatory criterions in the application of Exemption (g) is that the withheld records must be "for use in developing governmental policy." DLS has stated an intention to withhold all portions of the responsive agreements that do not relate to its statutory obligation with respect to setting prevailing wage rates. Whereas DLS does not use these portions of the agreements, though it seeks to withhold them under Exemption (g), DLS fails to satisfy this criterion of Exemption (g). Another mandatory criterion for Exemption (g) is that the records are disclosed to the governmental entity "upon a promise of confidentiality." DLS has not made any claim that the collective bargaining agreements were submitted upon a promise of confidentiality. DLS fails to satisfy this criterion of Exemption (g). Whereas DLS has failed to meet at least two (2) of the mandatory criteria, I find that it may not withhold portions of the responsive collective bargaining agreements pursuant to Exemption (g). Fees Mr. Cogliano requested a waiver of fees associated with his request. A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § IO(a); see also 950 C.M.R. 32.06(2). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of twenty cents ($.20) per page for a photocopy of a public record and fifty cents ($.50) per page for a computer print out of a public record. See 950 C.M.R. 32.06(1)(a). In addition to the copying fee, the Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1 )(c). The Regulations define "search time" as the time needed to locate, pull from the

Ms. Jean Zeiler, Esq. SPR14/278 Page Three September 17, 2014 file, copy and refile public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § 10(a). It is my understanding that the initial fee estimate was provided to Mr. Cogliano via telephone. Please be advised that all fee estimates in excess of $10.00 be made in writing. See 950 C.M.R. 32.06(2) (custodian shall provide written, good faith estimate where it expects costs to comply will exceed ten dollars ($10.00)). In your July 3rd letter to Mr. Cogliano you indicated 9.45 hours to extract copies of the contracts, at a cost of $254.00. It is not clear whether this calculation is based upon the lowest paid person capable of performing the task. It is also unclear whether this time includes redaction of portions of the records you claim are exempt pursuant to Exemption (g) of the Public Records Law. Finally, this estimate does not address Mr. Cogliano's request to be provided copies in electronic form if available. I find the fee estimates were not made in compliance with the Public Records Law and its Regulations. DLS is hereby ordered to revise the fee estimate to Mr. Cogliano in ten (1 0) days, prepared in a manner consistent with the Regulations and this written determination. IfDLS maintains that any portion of the responsive records are exempt from disclosure it may, within thirty (30) days provide to Mr. Cogliano and this office a written explanation, with specificity, how a particular exemption applies to each record. In the event a reconsideration appeal is opened by this office an acknowledgment will be provided to all parties, followed by a written determination by this office, to be provided within fifteen (15) business days. Requests for reconsideration filed more than thirty (30) days after the date of this letter will not be considered. Supervisor of Records cc: Mr. Ronald Cogliano