Susan C. Phillips, Esq. v. Consumer Affairs and Business Regulation (SPR 20170038)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 20, 2017 SPR17/038 Lorraine A.G. Tarrow, Esq. Assistant Attorney General Office of the Attorney General General Counsel's Office One Ashburton Place Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Susan C. Phillips, Esq., City Solicitor of the City of Westfield appealing the response of the Office of the Attorney General - Environmental Protection Division (AGO) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Attorney Phillips requested a copy of: 1. All documents received or sent, including letters and emails relating to Smith, et al v. City ofWestfield, et al., FAR No. 24692/Appeals Court No. 2014-P-0607 within the last two (2) years, 2. All documents received or sent, including letters and emails referencing Ashley Street School or Cross Street Playground within the last five (5) years. Prior appeal The requested records were the subject of a prior appeal and determination by this office. See SPR16/1200 Supervisor ofPublic Records (December 20, 2016). The Supervisor closed the prior appeal with the proviso that the AGO provide Attorney Phillips with a supplemental response regarding the October 27, 2016 requested records that the AGO was conducting a search for. In compliance with the determination, on December 29th the AGO provided Attorney Phillips with the response which included a written, good faith fee estimate for search and segregation. Attorney Phillips appealed the fees associated with her October 2016 request and asks the AGO to waive all applicable fees. While the new provisions regarding fees under the Public Records Law took effect on January 1, 2017, Attorney Phillips' request was made on October 17, 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

Lorraine A. G. Tarrow, Esq. SPR17/038 Page 2 January 20, 2017 2016, and therefore, the fees in this appeal are governed by the prior Public Records Law Access Regulations. See 950 C.M.R. 32.06 (fees for public records). Written, good faith fee estimate and request for waiver of fees A records custodian may assess fees in complying with a public records request, as long as the fees are reasonable and in compliance with the Public Records Law Access Regulations (Regulations). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive records. The Regulations provide that, in cases where search or segregation time is necessary, a custodian may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1)(a); see also 950 C.M.R. 32.03 (defining "search time" as the time needed to locate, pull from the file, copy and refile public records, and "segregation time" as the time used to delete data which is exempt from non-exempt material). The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § 1O (a). In addition to search and segregation time fees, a records custodian may be assessed at five cents ($.05) per page for photocopies or computer-generated copies of a public record. 950 C.M.R. 32.06(1 )(a). While the Public Records Law encourages records custodians to waive fees where applicable, this office has no authority to mandate that a records custodian do so. However, a review ofthe AGO's December 291 h fee estimate reveals that the AGO has waived four (4) hours of "search time" at the rate of twenty-five ($25 .00) dollars per hour resulting in a total savings of $100 from the total cost of the estimate. Estimated Search time The AGO's estimate includes twenty (20) hours of search time at the rate oftwenty-five ($25.00) dollars an hour for staff to search for and retrieve records, identifying approximately two hundred thirty-two (232) emails. These email records range from a single page to one hundred five (105) pages. After the AGO waiver offour (4) hours of search time, the AGO's estimate for search time totals sixteen (16) hours at $25.00 per hour, totaling $400.00. Estimated Segregation time The AGO also assessed segregation time of forty-one (41) hours at twenty-five ($25.00) dollars per hour for an attorney to review and segregate (redact) exempt material from the content of the records at a total cost for segregation of one thousand twenty-five ($1 025.00) dollars. The AGO estimates it will take an average time of five (5) minutes per email to review and segregate emails without attachments (approximately 103 records), and fifteen (15) minutes per email to review and segregate emails with one or more attachments (approximately 129

Lorraine A. G. Tarrow, Esq. SPR17/038 Page 3 January 20, 2017 records). After the waiver of four (4 ) hours of time from the actual twenty hours of search time, the total cost assessed by the AGO for search and segregation time expended in order to provide the records is $1425.00. I find that the AGO's estimate does not provide enough specificity to support twenty (20) hours of search time to cull the responsive emails, and information on how that search was conducted. It is also not clear whether twenty-five ($25.00) dollars per hour is the lowest paid hourly rate of the individual or individuals who are capable of conducting the search for the email records, and whether the twenty-five ($25.00) dollars per hour is the lowest paid hourly rate of an attorney who is capable of conducting segregation of the exempt material from the content of the records. The AGO stated in its December 29,2016 estimate that the records responsive to this request relate to ongoing litigation, and as previously explained by the AGO, the records will be subject to redaction under the exemptions in the Public Records Law. On December 23, 2016, the Supreme Judicial Court allowed an application for Further Appellate Review. The AGO indicates in this December 29th letter that their office anticipates a number of the responsive records will fall into Exemption (d) and the attorney-client privilege. Attorney Phillips did not indicate that she was appealing any exemption claims, however an attorney on my staff contacted the AGO regarding review and segregation of the records. It is the AGO's intent to provide Attorney Phillips with a detailed response or privilege log to accompany the records which will explain the segregation (redaction) of exempt material from the content of the records and which exemptions specifically apply to those redactions. I find the AGO's December 29, 2016 written, good faith estimate does not provide enough specificity for this office to properly render a determination on the reasonableness of the estimate in compliance with the Regulations. Accordingly, whereas the AGO has indicated to this office that a supplemental response will be provided concerning the written, good faith estimate I will consider this appeal closed with the proviso that the AGO provide Attorney Phillips with the response within ten (1 0) days, prepared in a manner consistent with this order, the Public Records Law and its Regulations. A copy of the supplemental response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec. state.ma. us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Susan C. Phillips, Esq. cc: Jillian Meade Riley, Esq.