Kathryn R. Eiseman v. HOLYOKE GAS & ELECTRIC (SPR 20191691)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 3, 2019 SPR19/1691 John J. Ferriter, Esq. Ferriter & F enit er LLC 1669 Northampton Street Holyoke, MA 01040 Dear Attorney Ferriter: I have received the petition of Kathryn R. Eiseman of Pipe Line Awareness Network.for the Northeast, Inc. (PLAN) appealing the response of the Holyoke Gas & Electric Department (Department/HG&E/Holyoke) 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 appeal and determinations This request was the subject of a fee petition submitted by the Department. See SPR19/1463 Determination of the Supervisor of Records (July 26, 2019). In my July 26th detennination 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 detennination, the Public Records Law, and its Access Regulations. This request was also the subject of an appeal. See SPRl 9/1515 Determination of the Supervisor of Records (August 13, 2019). In my August 13th determination I ordered the Department to provide Ms. Eiseman a response in a manner consistent with the Public Records Law, its Regulations, and the order. The Department responded on August 15, 2019. Ms. Eiseman appealed and SPR19/1691 was opened.as a result. 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. SPR19/1691 Page 2 September 3, 2019 Current appeal In my August 13th determination I found it was unclear whether the Department complied with the provisions of G. L. c. 66, § lO(e) and 950 C.M.R. 32.06(4)(b); specifically, I found it must explain whether it provided a response in compliance with G. L. c. 66, § lO(b) within ten business days following receipt of the July 1st as well as the narrowed July 17th request. I also indicated the Department must 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. In her August 19th appeal petition Ms. Eiseman asserts, in part, that" ... any fees are explicitly time-barred." G. L. c. 66, § lO(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, § lO(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. July JS1 request In its August 15th response the Department asserts, in part, "Holyoke responded to the July 1 initial request later in the day on July 1." You further indicate "[i ]n that response, Holyoke indicated it would comply and indicated it was working on as estimate. On July 12 (within 10 business days), Holyoke provided an estimate of over $10,000 and cooperated by asking if PLAN wanted to narrow the request." You note that "[ m Jany documents were provided free of charge on behalf of Holyoke on or about July 19."

John J. Ferriter, Esq. SPR19/1691 Page 3 September 3, 2019 July 17111 narrowed request On July 17th 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 cmrently 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." With respect to the July 17th na1Towed request, you explain "Holyoke responded to the July 17 narrowed request on July 18 with an estimate." You note that "Holyoke also provided PLAN with free websites where much of the data was posted, and cooperated by asking PLAN if it wanted to further naITow its request after reviewing the free offerings. PLAN declined to further narrow the requests. Holyoke further cooperated with PLAN by providing an update regarding documents to be provided free of charge on July 19." You assert that "Holyoke complied with 950 CMR 32.06(4)(b) and 32.06(4)(g) when it submitted the fee petition" and indicate that "[t]he narrowed request was provided on July 17 and the fee petition tailored to the narrowed request was submitted on Friday, July 19." You contend that "Holyoke remains ready, willing and able to provide the documents once the estimate is received." Ms. Eiseman 's appeal petition Ms. Eiseman indicates "[t]he record demonstrates that HG&E intended from July 1, the day it received our [r]equest, to charge in excess of $25 per hour. However, HG&E did not submit any petition the Supervisor for a waiver of the $25/hour limit until July 19th -- two days after I reminded HG&E's counsel (1) that the RAO had failed to meet the regulatory requirement to petition the Supervisor within 10 business days of our request (950 CMR 32.06(4)(g)), and (2) that the consequence was a waiver of the RAO 's right to assess any fees (950 CMR 32.06(4 )(b ))." She fu1iher contends "[i]n light of that fee waiver, I offered to narrow our [r]equest in order to reduce HG&E's expenses. This narrowing of the [r]equest did not include any 'new and different documents', as alleged by Mr. Ferriter in the 'Further Opposition" of August 2nd. We appreciate that many of the documents were provided to us by a third party; to be clear, we now only seek contracts within the scope of our initial Request that have not yet been provided to us by any party. Ms. Eiseman asserts "Mr. Ferriter also delayed in providing us a copy of HG&E's petition, so that we did not have a meaningful opportunity to respond with all of the relevant documentation." G. L. c. 66, § JO(e) and 950 C.MR. 32.06(4)(b), (g) In light of the Department's above explanation, I find the Department has complied with the provisions of G. L. c. 66, § 10(e) and 950 C.M.R. 32.06(4)(b). Specifically, it explained how

John J. Ferriter, Esq. SPRI9/1691 Page4 September 3, 2019 its responses dated July I st and July 12th were within 10 business days following receipt of tl1e July I st request in compliance with G. L. c. 66, § 1O (b ). With respect to the July 17th na1rnwed request, I find the Department demonstrated how its July 13th response, which included an fee estimate, was within 10 business days following receipt of the July 1st request in compliance with G. L. c. 66, § 10(b) and 950 C.M.R. 32.06(4)(b). The Department submitted its fee petition on July 19th, which was within 10 business days ofreceipt of the narrowed July 17th request. See 950 C.M.R. 32.06(4)(g) (petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within IO business days after receipt of a request for public records). Further, you demonstrated that you provided a copy of this petition to Ms. Eiseman. Despite the fact that the Department did not submit a fee petition with respect to the original July 1st request, I find that the Department's submission of its fee petition within 10 business days of the July 17th natTowed request is sufficient to demonstrate that it complied with 950 C.M.R. 32.06(4)(g) when it submitted the fee petition to this office. Although the Department may assess a fee in the manner described in my July 26th determination relating to the fee petition (SPR19/1463), Ms. Eiseman may appeal the substantive nature of the Department's fee estimate within 90 days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Kathryn R. Eiseman