Jeremy Thompson v. Operational Services Division (SPR 20191179)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 25, 2019 SPR19/1179 Thomas C. Hall, Esq. Legal Counsel Operational Services Division One Ashburton Place, Room 1017 Boston, MA 02108 Dear Attorney Hall: I have received the petition of Jeremy Thompson appealing the response of the Operational Services Division (Division) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Thompson requested from the Division "all Uniform Financial Reports (UFRs) filed by organizations working under contract to certain state agencies for fiscal years 2017 and 2018." The Division provided a fee estimate for $1,000.00 on April 25, 2019. Mr. Thompson sent an email to our office on June 11, 2019 appealing the Division's fee estimate. Public Records Law Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days of receipt of the request. G. L. c. 66, § lO(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § 1O (b ). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. The duty to comply with requests for records extends to those records that exist and are m the possess10n, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § 1O (b )(iii). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § lO(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 950 C.M.R. 32.06(3); see 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

Thomas C. Hall, Esq. SPR19/1179 Page 2 June 25, 2018 also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) ( custodian has the burden of establishing the applicability of an exemption). Fee estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2)(b) (a records access officer shall provide written, itemized, good faith estimate). Once fees are paid, a records access officer must provide the responsive records. 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 black and white copies for both single and double-sided copies of a public record. G. L. c. 66, § IO(d)(i). Agencies may not assess a fee for the first four hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d )(ii). Where appropriate, agencies 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, § IO(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). See G. L. c. 66, § IO(d)(iii); 950 C.M.R. 32.06(4). Appeal The Division provided a supplemental response on June 19, 2019 explaining the "data Mr. Thompson is requesting is a custom report which OSD does not routinely maintain in the course of its business. The request for all URFs for Fiscal Years 2017 and 2018 is in essence a request for the entire database for those years, which does not exist in one standalone file." The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § 10( a)(ii) (b )(ii). The records access officer shall not be required to create a new public record in order to comply with a request, provided that furnishing a segregable portion of a public record shall not be deemed to be creation of a new record. G. L. c. 66, § 6A(d ); see also 950 C.M.R. 32.08(1)(±). It is unclear whether the Division is in possession of the record requested by Mr. Thompson. The Division has the duty to provide Mr. Thompson with requested records in its possession. See G. L. c. 66, § IO(a)(ii), (b)(iii). The Division explained in the June 19th supplemental response that "[f]or a fee, OSD staff will help members of its subscription service search multiple UFR filings and, for an

Thomas C. Hall, Esq. SPR19/1179 Page 3 June 25, 2018 additional fee, create certain custom reports." The Division also stated they "informed Mr. Thompson that for a fee, he could access the UFR database and search for the information he sought." The Division must provide a more detailed fee estimate in accordance with the Public Records Law and its Regulations. See G. L. c. 66, § 10( d)(i). It is not clear what documents would be produced to Mr. Thompson and if the documents pertained to his public records request. The Division's fee estimate must provide clarity on what documents are being produced, reasons for possible redaction of documents, and the associated fees. Id. The Division has not indicated the employee who will be searching for or segregating the records, or identified which exemptions allow for the redactions of records, or specified how the exemptions apply to the withheld records. See G. L. c. 66, § lO(d)(iv) (written response must "identify any records, categories of records or portions of records that the agency intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "). If necessary, this office encourages both parties to communicate further to enable the Division to provide a more refined search for Mr. Thompson. See G. L. c. 66, § lO(b)(vii) (an agency shall 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 municipality to produce records sought more efficiently and affordably). The records access officer (RAO) shall provide the public records to a requestor by electronic means unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in a usable electronic form. G. L. c. 66, § 6A ( d). It is my understanding that Mr. Thompson is requesting an alternative means of production of the requested records. The Division should coordinate with Mr. Thompson to provide the requested records in the most accessible and affordable manner available. Order Accordingly, the Division is ordered to provide Mr. Thompson with a response and fee estimate in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Jeremy Thompson