Harold Manchester v. Executive Office of Technology Services and Security (SPR 20191280)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor of Records July 9, 2019 SPR19/1280 Shannon C. Sullivan, Esq. General Counsel Executive Office of Technology Services & Security Commonwealth of Massachusetts One Ashburton Place, 8th Floor Boston, MA 02108 Dear Attorney Sullivan: I have received the petition of Harold Manchester appealing the response of the Executive Office of Technology Services & Security (EOTSS) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Manchester requested from EOTSS "[a]ny vendor or consultant" documents regarding EOTSS. EOTSS provided a fee estimate for $316.25 on June 14, 2019. Mr. Manchester sent an email to our office on June 24, 2019 appealing EOTSS '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 ofreceipt of the request. G. L. c. 66, § 10( 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, § lO(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 in the possession, 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, § lO(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, § 1O (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

Shannon C. Sullivan, Esq. SPR19/1280 Page 2 July 9, 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, § lO(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, § I 0( 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, § I 0( 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, § IO(d)(iv). See G. L. c. 66, § IO(d)(iii); 950 C.M.R. 32.06(4). Appeal EOTSS must provide a more detailed fee estimate in accordance with the Public Records Law and its Regulations. See G. L. c. 66, § lO(d)(i). It is not clear what documents would be produced to Mr. Manchester and if the documents pe1iained to his public records request. EOTSS' fee estimate must provide clarity on what documents are being produced, reasons for possible redaction of documents, and the associated fees. Id. EOTSS 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, § I 0( d)(iv) (written response must "identify any records, categories of records or pmiions 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 fmiher to enable EOTSS to provide a more refined search for Mr. Manchester. See G. L. c. 66, § IO(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor

Shannon C. Sullivan, Esq. SPR19/1280 Page 3 July 9, 2018 to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). · Order Accordingly, EOTSS is ordered to provide Mr. Manchester 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: Harold Manchester