Mary S. Booth v. Department of Energy Resources (SPR 20191534)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 15, 2019 SPR19/1534 Rachel Graham Evans, Esq. Deputy General Counsel Massachusetts Department of Energy Resources 100 Cambridge Street, Suite 1020 Boston, MA 02114 Dear Attorney Evans: 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 'I-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 'I-year analysis' the regulatory requirement in the GHG calculator dated 04-27-12 (filename: 'overall-efficiency-and-ghg-analysis guideline-doer-04 2 712 .xlsx') 3. Decision to make 'I-year analysis' the regulatory requirement in the GHG calculator used for the Alternative Pmifolio 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." Previous appeal This request was the subject of a previous appeal. See SPR19/1326 Determination of the i 11 Supervisor of Records (July 17, 2019). In my July 1 determination I ordered DOER to provide Ms. Booth with a response to the request, provided in a manner consistent with the order, the 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

Rachel Graham Evans, Esq. SPR19/1534 Page 2 August 15, 2019 Public Records Law and its Regulations. DOER responded on July 30, 2019. Ms. Booth appealed and SPR19/1534 was opened as a result. Current appeal DOER initially provided a written response on June 7, 2019 that 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. Please note that categories 3 and 4 of the request were the subject of an appeal with this office. See SPRl 9/14 70 Determination of the Supervisor of Records (August 7, 2019) .. On June 28, 2019 DOER provided a response in which it declined to waive the assessed fee with respect to categories 1 and 2 and explained that it required 66 hours to produce records. In my July 1] 1h determination I found, in part, that the Department must explain why 66 hours are needed to produce the records. DOER's July 30th response provides additional information regarding why it requires 66 hours for this task. 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, § lO(d). The fees must reflect . the actual cost of complying with a paiiicular 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, § 10(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). 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). In the July 30th response you explain DOER estimates 6 hours to identify the location of potential records, 48 hours to search for potential records, 10 hours to compile potential records, and 2 hours to reproduce records. DOER provides information about each of these tasks and also notes it is not assessing a fee for the time spent segregating/redacting potential records. In her July 31st appeal petition Ms. Booth offers suggestions on how to narrow and/or modify the request to provide records more efficiently and affordably. For example, in response to your assertion that "DOER has identified 6 former staff members who may have held

Rachel Graham Evans, Esq. SPR19/1534 Page 3 August 15, 2019 responsive records," Ms. Booth indicates" ... please let me know the names of the staff involved, and I can tell you whether their records need to be searched." (emphasis omitted). She also suggests that learning how the system searches the email archives by, for instance, having a conversation with an IT specialist, could help avoid searching physical records. Ms. Booth references the suggestions in her appeal and asserts" ... if you agree with my assessment, please urge DOER to cooperate." In light of the above suggestions, I find it is unclear why DOER requires the estimated amount of time to produce records. Please be advised, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Further, 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. See G. L. c. 66, § lO(b)(vii). I find DOER must provide a response that assists Ms. Booth to help modify the scope of the request; in particular, the response must address Ms. Booth's suggestions outlined above that attempt to facilitate production of records more efficiently and affordably. 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, ~UIT~ Supervisor of Records cc: Mary Booth