Mary S. Booth v. Massachusetts Department of Energy Resources (SPR 20191326)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July17,2019 SPR19/1326 Dan Burstein, Esq. Legal Counsel Massachusetts Department of Energy Resources 100 Cambridge Street, Suite 1020 Boston, MA 02114 Dear Attorney Burstein: I have received the petition of Mary Booth of the Partnership for Policy Integrity appealing the response of the Department of Energy Resources (DOER) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Booth requested "[a]ll emails, meeting notes, written memos, comment letters submitted by stakeholders, notes from meetings with stakeholders, scientific materials (including but not limited to published papers), and other materials pertaining to: 1. Decision to use' 1-year analysis' for lifecycle emissions in GHG calculator dated - 05-03-11, tab titled 'GHG analysis' (filename: 'ma-rps-guideline-overall-efficiency and-ghg-analysis-doer-050311.xlsx'). 2. Decision to make '1-year analysis' the regulatory requirement in the GHG calculator dated 04-27-12 (filename: 'overall-efficiency-and-ghg-analysis-guideline doer-042712.xlsx') 3. Decision to make 'I-year analysis' the regulatory requirement in the GHG calculator used for the Alternative Portfolio Standard. 4. Decision to eliminate the requirement to provide data on 'Biomass Fuel Processing Stack Emissions' from GHG calculator for Alternative Portfolio Standard. This requirement occurs in the version of the GHG calculator used for the RPS, on the 'GHG Analysis' tab, but was eliminated from the APS calculator." DOER provided a written response on June 7, 2019 in which it included a fee estimate for the provision of categories 1 and 2 of the request and indicated it needed additional time to process categories 3 and 4 of the request. On June 28, 2019 DOER provided a response in which it declined to waive the assessed fee. One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Dan Burstein, Esq. SPR19/1326 Page 2 July17,2019 Appeal In her petition Ms. Booth indicates she is appealing" ... the rejection of our fee waiver request for a public records search at DOER." It does not appear that the production of records responsive to categories 3 and 4 is at issue in this appeal, however, Ms. Booth may inform this office if this is not the case. Fee waivers G. L. c. 66, § lO(d)(v) provides the following with respect to waiving a fee for the production ofresponsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. In light of this provision, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § lO(d)(v); see also 950 C.M.R. 32.07(2)(k) (emphasis added). 111 In its June 28 response DOER asserts "[i]n accordance with G.L. c. 66, § lO(b) and 950 C.M.R. 32.07(2), DOER has reviewed its cost estimate and your previous statement that the Partnership for Policy Integrity is unwilling to narrow its request and thereby reduce the cost of production. Due to the considerable amount of staff time required to search through archived paper and electronic records related to this request, DOER is not able to waive the assessed fee." Although DOER has elected not to waive the fee in this matter, its fee estimate must be in compliance with the Public Records Law and its Regulations. Fee estimate for categories 1 and 2 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, § lO(d)(ii).

Dan Burstein, Esq. SPR19/1326 Page 3 Julyl?,2019 Where appropriate, agencies may include as pmi 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, § lO(d)(iv). See G. L. c. 66, § lO(d)(ii); 950 C.M.R. 32.06(4). i 11 In its June response DOER explains "[i]n order to search and segregate records responsive to Items 1 and 2, DOER will need to access archived paper records currently held in storage. DOER will also need to retain the services of Information Technology specialists, in order to search archived electronic records and archived email databases of former employees." You note that "DOER estimates that this production would require approximately 66 hours of staff time, over the course of five weeks. In accordance with G.L. c. 66, § lO(b) and 950 C.M.R. 32.07(2), DOER has determined that a cost of $1,550 is required to process this portion of the production. This amount is based on 62 hours (66 hours minus the first 4 hours) at $25/hour, which the cost of the lowest hourly rate of a person capable of processing this request, excluding 111 the first four hours." DOER reiterated this estimate in its June 28 response. Please be advised, G. L. c. 66, § lO(e) provides that "[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor i'\ within 10 business." Although DOER provided Ms. Booth a fee estimate on June it is unclear whether the DOER complied with G. L. c. 66, § 10( e) by providing a response to Ms. Booth's request within 10 business days under G. L. c. 66, § 1O (b ). Therefore, I find DOER must demonstrate whether it responded to Ms. Booth's request in compliance with G. L. c. 66, § lO(e). With respect to the amount of the fee, I find the Department must explain why 66 hours are needed to produce the records; specifically, it must describe how much time is needed to search for the records versus how much time is needed to segregate and/or redact. Further, whereas it does not appear DOER submitted a petition to this office for permission to assess fees for the time to segregate and/or redact responsive records, DOER must also explain whether any such redactions are required by law. See G. L. c. 66, § lO(d)(iii) (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)). The pmiies are encouraged to communicate further to determine whether any respoµsive records may be provided more efficiently and affordably. 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 agency to produce records sought more efficiently and affordably).

Dan Burstein, Esq. SPR19/1326 Page 4 July 17, 2019 Conclusion Accordingly, DOER is ordered to provide Ms. Booth with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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, ~ I T ~ Supervisor of Records cc: Mary Booth