Joshua Miller v. Department of Revenue (SPR 20191026)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 31, 2019 SPR19/1026 Roger H. Randall Tax Counsel and Disclosure Officer Litigation Bureau Massachusetts Department of Revenue 100 Cambridge Street, 7th Floor Boston, MA 02114-2582 Dear Mr. Randall: I have received your petition on behalf of the Massachusetts Department of Revenue (Department) seeking an extension of time to produce records. G. L. c. 66, § lO(c); see also 950 C.M.R. 36.06(4)(b). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § lO(c), lO(d)(iv). In a request made to the Department on April 24, 2019, and subsequent modified request, Mr. Miller is requesting records pertaining to "all description, discussion, and comments from all COMETS HD priority one defects for a six-month period." Petitions 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 ofrequests 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. 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

Roger H. Randall SPR19/I026 Page2 May 31, 2019 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. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requester within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current petition The Department is seeking "an extension of time within which to produce copies of certain records, because of the magnitude of the request" and additionally "that the Supervisor enlarge the response date until 40 business days after the decision by the Supervisor or the election by Mr Miller to proceed with the request and to pay the fees that we have estimated, whichever date is later." In support of its petition, the Department explains the request "is extremely broad, asks for records that are not segregated and implicates several categories of confidential records. Given the breadth and nature of this request, responding will require significant personnel time to assemble, review and redact to ensure that DOR complies with its obligations to maintain confidential and privileged information under the relevant law. All personal information in the Child Support Enforcement records is statutorily protected from disclosure. G.L. chapter 119A, § 5A ( c ). Any personally identifiable tax'."'information is likewise protected from disclosure. G.L. chapter 62C, § 21(a). Further, any computer-security information is defined not to be a public record. G.L. c. 4, § 7, clause 26(n)." Further, the Department explains "[t]here are 176 separate defects that are priority one from the last 6 months (Oct. 30, 2018 -April 29, 2019). The record of defects consists of a spreadsheet and, in about 75% of the instances, attachments. For those defects that have attachments, there are on average about 4.7 attachments per defect. About 77% of the attachments need redaction, because the attachments are often COMETS HD screen-shots containing personally identifiable information, personal tax information, or computer security information, all of which must be reviewed for appropriate redactions. Because of the technical character of some of this material, including the attachments, and the personal information and computer security codes contained therein, experienced CSE personnel will be needed to perform the reviews and redactions." Under the updated Public Records Law and Access Regulations, an agency, when appropriate, can suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce

Roger H. Randall SPR19/1026 Page 3 May 31, 2019 records sought more efficiently and affordably. G. L. c. 66, § lO(b)(vii); 950 C.M.R. 36.06(2)(g). The Department indicated Mr. Miller has modified his request and the Department has "supplied to Mr. Miller an estimate of the fees that we will charge to produce these records, and Mr. Miller is considering whether to proceed." Conclusion Accordingly, I find that in light of the Department's discussions with Mr. Miller regarding whether he will proceed with his modified request, it is unnecessary to opine on the Department's petition at this time. See G. L. c. 66, § lO(b)(vii); see also G.L. c. 66, § lO(a)(i) (a request must reasonably describe the public record sought). Upon receiving confirmation that Mr. Miller wants to proceed with the request, or make additional modification to the request, the Department must provide the records in a manner consistent with the Public Records Law and its Regulations. However, if the Department requires additional time to produce the responsive records, it may submit a petition, within fifteen days of confirmation or modification, seeking an extension of time in accordance with G. L. c. 66 § lO(c). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Joshua Miller