Kathryn R. Eiseman v. HOLYOKE GAS & ELECTRIC (SPR 20191515)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 13, 2019 SPR19/1515 John J. Ferriter, Esq. Ferriter & Ferriter LLC 1669 Northampton Street Holyoke, MA O1 040 Dear Attorney Ferriter: I have received the petition of Kathryn R. Eiseman of Pipe Line Awareness Network for the Northeast, Inc. appealing the response of the Holyoke Gas & Electric Department (Department/HG&E) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically; Ms. Eiseman requested records concerning "power purchase agreements." Previous determination This request was the subject of a fee petition submitted by the Department. See 111 SPR19/1463 Determination of the Supervisor of Records (July 26, 2019). In my July 26 determination I found the Department 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, § 10(d )(iv). Further, I found the Department 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 found the Department has met its burden to assess the Power Supply Analyst's hourly rate of $63.49; however, this allowance was limited only to the time spent segregating and/or redacting specific exempt information. I noted that any updated fee estimate by the Department must be in compliance with this determination, the Public Records Law, and its Access Regulations. Ms. Eiseman appealed on July 30, 2019 and SPR19/1515 was opened as a result. 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 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. SPR19/1515 Page 2 August 13, 2019 ($.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, § 10( d)(i). Municipalities may not assess a fee for the first 2 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, § IO(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, § 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 In her appeal petition Ms. Eiseman contends that the Department waived its right to assess fees in connection to providing responsive records. G. L. c. 66, § IO(e) provides the following: A records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b ). G. L. c. 66, § IO(e). 950 C.M.R. 32.06(4)(b) provides the following: petitions filed under 950 CMR 32.06(4) do not affect the requirement that a records access officer shall provide an initial response to a requester within ten business days after receipt of a request for public records, pursuant to 950 CMR 32.06(2)(a) or (b ). Failure to comply with 950 CMR 32.06(4 ) will result in a waiver of the right to assess fees for public records. Further, 950 C.M.R. 32.06(4)(g) provides the following: 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. Based on a review of the file, I understand that the Department received Ms. Eiseman's initial request on July 1, 2019. The Department initially responded on July 1st by indicating

John J. Ferriter, Esq. SPR19/1515 Page 3 August 13, 2019 "[y]our letter to HG&E dated today asking for PSAs was referred to this office for reply. The fee will be $35/ hour and HG&E will inform the Secretary of State. An estimate will be completed this week and upon receipt of your check, documents will be copied." You also responded on July 12th by indicating the following: Upon review, HG&E has determined the effort to begin.the process of organizing the more than a dozen agreements will cost in excess of $1,000. Further, the cost to contact all counter parties regarding the confidentiality clauses, redact, assemble and transmit the documents could be in excess of $10,000. The question is whether you might want to narrow your request, or proceed with this significant undertaking. Please advise. To provide some of the documents you requested in the most efficient manner possible, we asked the joint action agency, the Massachusetts Municipal Wholesale Electric Company (MMWEC), to submit some of the responsive documents to you directly. MMWEC expects to be able to provide some of the documents to you by July 19. ih On July 1 Ms. Eiseman sent an email to you that notes "[w )e are [] willing to narrow our request to only the active contracts themselves, with any amendments currently in force - i.e., omitting the request for 'appendices, exhibits, statistical tabulations, or other documentary materials or data', so long as this omission does not alter our understanding of the contractual provisions." In response to this email, on July 13th you asserted "[t)hank you for the update regarding MMWEC and for your revised request. Some of the information in your new request are available for free at the websites below. Please let me know if you would like to further narrow your request after you review the free offerings. The current estimate for your request is attached. We will send you a copy of the HG&E petition tomorrow." The Department submitted its fee petition to this office on July 19t11, In a July 23rd email to this office you note, in part, "[Ms. Eiseman] has been copied on the petition." In her appeal petition Ms. Eiseman asserts, in part, that she" ... [h]ereby seeks a waiver of fees, pursuant to 950 CMR 32.06(4)(b), which states in relevant part: 'Failure to comply with 950 CMR 32.06(4) will result in a waiver of the right to assess fees for public records.' The RAO failed to comply with 950 CMR 32.06(4)(g): as set forth below, the HG&E Petition was untimely. Moreover, the correspondence provided herewith demonstrates that the RAO failed to provide pertinent information regarding the unreasonableness of the fees the RAO seeks to assess." In an email to this office on August 2, 2019 you reference Ms. Eiseman's July 1i 11 email and claim it" ... certainly requested new and different documents."

John J. Ferriter, Esq. SPR19/1515 Page 4 August 13, 2019 G. L. c. 66, § JO(e) and 950 C.MR. 32.06(4)(b), (g) In light of the above, I find it is unclear whether the Department has complied with the provisions of G. L. c. 66, § lO(e) and 950 C.M.R. 32.06(4)(b); specifically, it must explain whether it provided a response in compliance with G. L. c. 66, § 1O (b) i 11 within ten business days following receipt of the July 1st as well as the narrowed July 1 request. The Department must also clarify whether it complied with 950 C.M.R. 32.06(4)(b) and 950 C.M.R. 32.06(4)(g) when it submitted the fee petition to this office. 111 It should be noted that implicit in my July 26 determination was that the Department was required to comply with applicable provisions of the Public Records Law and its Regulations. Conclusion Accordingly, the District is ordered to provide Ms. Eiseman a response in a manner consistent with the Public Records Law, its Regulations, and this order 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, ~ r r ~ Supervisor of Records cc: Kathryn R. Eiseman