Carlo Cellai v. Division of Banks (SPR 20170098)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 6,2017 SPR171098 Lia Fahey Records Access Officer Massachusetts Division of Banks oth 1000 Washington Street, 1 Floor Boston, MA 021 18 Dear Ms. Fahey: I have received the petition of Carlo Cellai, Esq. appealing the response of the Division of Banlts (Division) to a request for public records. G. L, c. 66 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Cellai requested a copy of records related to applications for debt collectors' licenses, This request was the subject of a prior appeal. See 171069 Supervisor of Records Determination (January 13,201 7). The Division provided Attorney Cellai with certain records and withheld others under Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, 5 7(26)(a), (c). The Division also provided a fee estimate for the provision of other responsive records. Attorney Cellai appealed, indicating he did not receive all responsive records. Access depends on content of records In his petitions to this office, Attorney Cellai indicates he made the request on behalf of his client. Please note that the reason for which a requestor seelts access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bouaas v. Chief of Police of Lexington, 371 Mass. 59,64 (1976). Accordingly, Attorney Cellai's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 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

Lia Fahey Page 2 February 6,201 7 Mass. 639 (1998); 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means."). In addition, the Supervisor of Records (Supervisor) may deny an appeal if the public records in question are the subject of disputes in active litigation, administrative hearings or mediation, 950 C.M.R. 32.08(2)(b). As such, Attorney Cellai may wish to consider another means of seeking to obtain any existing responsive records. The Division's responses I understand the Division provided multiple responses to Attorney Cellai including letters dated January 10,201 7, January 17'20 17, as well as an email dated January 18,2017 in which the Division enclosed certain responsive records. Fees The Division provided a fee estimate in its January 10"' letter. A custodian of records may assess a reasonable fee for complying with a request for public records, G. L. c. 66, 5 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 ($10.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records), Under the Regulations, a custodian of records may assess a maximum fee of five cents ($.05) per page for a black and white single or double-sided photocopy 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 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, 5 1O (a). Attorney Cellai's request sought nine (9) categories of records. I understand an attorney on my staff contacted you about this appeal. You indicated the Division would review Attorney Cellai's request to determine whether the fee estimate can be broken down by each category of requested records. Records provided Your January 17 thr esponse provided certain responsive records and informed Attorney Cellai that portions were withheld or redacted pursuant to G. L. c. 93, 5 24D as it operates

Lia Fahey Page 3 February 6,2017 through Exemption (a), as well as the privacy clause of Exemption (c). It should be noted that in order to redact or withhold records or information, an agency or municipality must not only cite an exemption but specifically explain how that exemption applies to the record or records. See Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (1995) (custodian has the burden of establishing the applicability of an exemption). In an email dated January 30,2017, Attorney Cellai informed this office that '"wlith regard to the documents produced, I told them to produce the 244 applications to me on behalf of my client." The Division must clarify which records have been provided as well as which of the nine (9) requested categories of records have yet to be provided and why, I understand the Division has communicated with Attorney Cellai, including in an email dated January 5,2017, in an attempt to revise or narrow his request to reduce the costs. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Division provide Attorney Cellai with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such 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 L l Supervisor of Records cc: Carlo Cellai, Esq.