Harold Manchester v. Executive Office of Technology Services and Security (SPR 20191202)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 24, 2019 SPR19/1202 Shannon C. Sullivan General Counsel; Chief Privacy Officer Executive Office of Technology Services and Security 1 Ashburton Pl #804 Boston, MA 02108 Dear Attorney Sullivan: I have received your petition on behalf of the Executive Office of Technology Services and Security (EOTSS) requesting permission to charge for time spent segregating or redacting responsive records under G. L. 66, § lO(d)(iv). As required by law, EOTSS furnished a copy of this petition to the requestor. G. L. c. 66, § lO(c). On May 31, 2019, Harold Manchester requested" ... all records, dating from Jan. 1, 2015 to the present, as follows: Any vendor or consultant (for example but not limited to KPMG, Ernst & Young, Accenture, McKinsey) reviews, assessments, evaluations, reports, check-ups, return on investment (ROI) calculations ( and the specific financial data supporting those calculations), recommendations, and findings regarding the EOTSS (formerly MassIT) organization." Petition to Assess Fees 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 (Supervisor) under a petition under G. L. c. 66, § 10 ( d)(iv). See G. L. c. 66, § 10(d )(iii); 950 C.M.R. 32.06(4). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § lO(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve an agency's petition to allow the agency to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. 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

Shannon C. Sullivan, Esq. SPR19/1202 Page2 June 24, 2019 G. L. c. 66, § lO(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the agency to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates 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 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. 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, § 10(d )(iv). See G. L. c. 66, § 10(d )(ii); 950 C.M.R. 32.06(4). Current Petition EOTSS is requesting "approval to assess fees for costs associated with responding to a public records request submitted by Mr. Harold Manchester on May 31, 2019." EOTSS explains that it is an agency "with the responsibility for maintaining and supporting the Commonwealth's IT infrastructure and cybersecurity, as well as extensive confidential information. Further, EOTSS indicates that "subject documents which have been identified are likely to contain material not subject to public disclosure pursuant to M.G.L. c. 4, § 7, cl. 26 (b), (d), (g), and (n). Accordingly, the information must be segregated and redacted from the records before the records are produced to a third party such as the requestor." EOTSS states that "[g]iven that there are at least 213 pages which EOTSS must review and redact, this will impose an onerous burden on EOTSS which will have to devote limited resources to review and redact these records. Given the volume of information requiring review,

Shannon C. Sullivan, Esq. SPR19/1202 Page 3 June 24, 2019 EOTSS's good faith estimate of cost amounts to $316.25. This amount is based upon the following: EOTSS estimates, conservatively and in good faith, that it will expend an average of 3 minutes to review each page which has been identified, and 2 hours to compile any remaining records. Accordingly, the good faith estimate of costs amounts to $316.50 (213 pages x 3 minutes/page= 639 minutes or 10.65 hours+ 2 hours= 12.65 hours at $25/hour = $316.25)." Conclusion In light of the EOTSS's petition, I find EOTSS has met its burden to explain how the request could not have been prudently completed without the redaction or segregation. To the extent the responsive records contain the exempt information as described above, EOTSS may assess a charge for the segregation and redaction of such exempt material. When preparing a fee estimate for the provision of the requested records, EOTS S is advised to provide a detailed explanation to the requestor indicating why this estimated amount of time is necessary. See G. L. c. 66, § 10( d)(iv) (requiring the amount of the fee must be reasonable). EOTSS must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. EOTSS must provide a response to Mr. Manchester within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Manchester may appeal EOTSS's fee estimate within ninety days. See 950 C.M.R. 32.08(1 ). Please note, Mr. Manchester has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4), lOA(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Harold Manchester