Gar Chung v. MWRA Employees' Retirement System (SPR 20181387)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 2, 2018 SPRlS/1387 Carolyn Russo Executive Director MWRA Employees' Retirement System 2 Griffin Way Chelsea, MA 02150 Dear Ms. Russo: I have received the petition of Gar Chung of the Financial Investment News (FIN) appealing the response of the MWRA Employees' Retirement System (Retirement System) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Chung requested a copy of: "all investment presentations and handouts from the Aug. 31 board meeting." On September 14, 2018, the Retirement System provided Mr. Chung with a response which included a fee estimate in the amount of $937.50 for 106 pages ofrecords responsive to Mr. Chung's request. The September 14th response states, "[t]his amount represents 10% of 1/12 of the annual Consulting Fees paid for research, performance analysis, RFP searches, investment policy recommendations, asset allocation studies, etc., based on actual payments made by [the Retirement System] to NEPC for Ql and Q2 of 2018 ... " Prior determination ofp etition from Retirement System - SPRJ 8/1322 FIN's monthly requests to the Retirement System were the subject of a petition to the Supervisor by the Retirement System. In its petition, the Retirement System sought to be relieved of the obligation to provide copies of the records sought under G. L. c. 66, § lO(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. In my August 22, 2018 determination of the Retirement System's petition for relief to provide copies of the July 30, 2018 request for the responsive records, I found that the Retirement System did not meet its burden of demonstrating how the July 30th request was "part 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

Carolyn Russo SPR18/1387 Page 2 October 2, 2018 of a series of contemporaneous requests that are frivolous or designed to intimidate or harass," nor did it show how the requests, which pertain to investment presentations and handouts from a board meeting, "are not intended for the broad dissemination of information to the public about actual or alleged government activity" as required by G. L. c. 66, § 10(c ). I concluded that the Retirement System must provide Mr. Chung with a response in accordance with G. L. c. 66, § lO(a)-(b). See SPR18/1322 Determination of the Supervisor (August 22, 2018). Current appeal-SPRJS/1387 As a result of the Retirement Systems' September 14th fee estimate in the amount of $937.40, Mr. Chung petitioned the Supervisor and the current appeal, SPR18/1387, was opened. In his petition, Mr. Chung states, "[t]his agency is charging me fees equal to 1/12 of the annual fees they pay to their consultants. The agency would've paid for these fees regardless if I request these documents or not. I am requesting documents that the board receives as part of its business, not for any customized reports that the agency would have to pay for." Previous request for records The Retirement System indicates Mr. Chung has not paid the Retirement System for the 300 pages ofrecords from his July 30th request for the same type ofrecords; therefore, the Retirement System asserts it is not required to provide the August records until Mr. Chung pays for the previously requested records. A records access officer may provide written notice denying access to public records to a requestor who has failed to compensate the custodian for previously produced public records, provided: (1) A fee estimate for a previous request was prepared in compliance with 950 C.M.R. 32.00 and the requestor agreed to pay the previous fee; and (2) the written notice details the reasons for denial, including an itemized list of any balances attributed to previously produced records. See G. L. c. 66, § lO(d)(iv); see also 950 C.M.R. 32.07(2)(n). It is unclear whether the previous fee estimate was provided in compliance with 950 C.M.R. 32.00 and this fee was agreed to by Mr. Chung. Fees applicable to agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § lO(d)(i). Agencies may not assess a fee for the first four ( 4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § lO(d)(ii).

Carolyn Russo SPRl 8/1387 Page J October 2, 2018 Where appropriate, an agency 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, agencies 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, § lO(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, § lO(d)(iv). G. L. c. 66, § lO(d)(iii); 950 C.M.R. 32.06(4). Retirement Systems' September 14th fee estimate The Retirement System's $937.00 fee for production of the requested records is based on 10% of 1/12 of the annual fee that the Retirement System incurs on an annual basis from its financial consultants and asset managers. It is unclear how this estimate is in compliance with the provisions of the Public Records Law discussed above. See G. L. c. 66, § 10(d ). Conclusion Accordingly, the Retirement System is hereby ordered to provide Mr. Chung with a revised estimate in a manner consistent with this determination, 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 Supervisor of Records cc: Gar Chung