Kathryn R. Eiseman v. Holyoke, City of - Gas & Electric Department (SPR 20191463)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray· Supervisor of Records July 26, 2019 SPR19/1463 John J. Ferriter, Esq. Holyoke Gas & Electric Depaiiment 99 Suffolk Street Holyoke, MA O1 040 Dear Attorney Ferriter: I have received your petition on behalf of the Holyoke Gas & Electric Department (Department) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § lO(d)(iv). As required by law, the Department furnished a copy of its petition to the requestor, Kathryn R. Eiseman. Id. In this matter, I understand Ms. Eiseman requested various categories of records concerning "power purchase agreements." Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from an agency to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the tequest is for a commercial purpose or 2) the fee represents an actual and good faith representation by the agency to comply with the request. G. L. c. 66, § lO(d)(iv). 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 a municipality's petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § lO(d)(iv). The second prong of the test is whether the fee represents an actual and good faith representation by the municipality 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 or fee in excess of $25 per hour; 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. 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

John J. Ferriter, Esq. SPRl 9/1463 Page 2 July 26, 2019 Fee Estimates A municipality 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). Municipalities may not assess a fee for the first two hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § lO(d)(iii). Where appropriate, municipalities 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, municipalities 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, § lO(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, § lO(d)(iii); 950 C.M.R. 32.06(4). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4 )(g). Current Petition In its petition to this office dated July 19, 2019 the Department writes, "Holyoke recently received a new request for power purchase agreements that contain competitive pricing and other commercially protected information, as well as confidentiality provisions common to the utility industry." The Department further states, "[t]he nature of the contracts in question and the communication with utility counterparties regarding the confidentiality requirements requires Holyoke to utilize a Power Supply Analyst who is paid $63.49 per hour. To the exten[t]possible, the time of an Administrative Assistant will be utilized at an actual hourly rate of $28.85. Please approve this Petition so the records can be provided promptly." With respect to the applicability of exemptions to the requested records, the Department cites., in paii, G. L. c. 164 § 47D which states, "[a] municipal lighting plant created pursuant to the provisions of this chapter or any special law shall be exempt from the public record requirements of section 10 of chapter 66 and the open meeting requirements of sections 20 and 21of chapter 30A in those instances when necessary for protecting trade secrets, confidential, competitively sensitive or other proprietary information provided in the course of proceedings conducted pursuant to this chapter when such municipal lighting plant board determines that such disclosure will adversely affect its ability to conduct business in relation to other entities making, selling, or distributing electric power and energy pursuant to this chapter."

John J. Ferriter, Esq. SPRl 9/1463 Page 3 July 26, 2019 Conclusion In light of the Department's petition, I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction, segregation and/or a fee in excess of $25 per hour. See G. L. c. 66, § lO(d)(iv). Further, I find the Department has established how it may assess a fee for the time spent by the Administrative Assistant at an hourly rate of $28.85. In addition, I find the Department has met its burden to assess the Power Supply Analyst's hourly rate of $63 .49; however, this allowance is limited only to the time spent segregating and/or redacting the exempt information described above. Any updated fee estimate by the Department must be in compliance with this determination, the Public Records Law, and its Access Regulations. Ms. Eiseman may appeal the Department's fee estimate within 90 days. See 950 C.M.R. 32.08(1). This office encourages Ms. Eiseman and the Depaiiment to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § lO(b)(vii) (a municipality 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). Please note, the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior comi. See G. L. c. 66, § 10(d)(iv)(4), lOA(c). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Kathryn R. Eiseman