Framingham Reporter v. Office of the Secretary of the Commonwealth - Administrative Services Division (SPR 20192166)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

October 23, 2019

SPR19/2166 Valerie J. Connolly

Records Access Officer

Office of the Secretary of the Commonwealth One Ashburton Place, Room 1710

Boston, MA 02108

Dear Ms. Connolly:

I have received your petition on behalf of the Office of the Secretary of the Commonwealth (Office) requesting permission for a waiver of statutory limits on fees that may be assessed in responding to a request. G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Office furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On October 9, 2019, the Framingham Reporter requested “all email [s]ent by Supervisor of Records Rebecca Murray from January 1, 2019 to the present date.”

Petition to Assess Fees

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 (Supervisor) under a petition under G. L. c. 66, § 10 (d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). . .

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, § 10(d)(iv).

The statute sets out a two-prong test for determining whether the Supervisor may approve an agency's petition to allow the agency to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose,

The second prong of the test is whether the fee represents an actual and good faith representation by the agency to-comply with the request. The Supervisor must consider 1) if the

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

Valerie J, Connolly SPR19/2166 Page 2 : October 23, 2019

fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 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.

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. 950 C.M.R. 32.06(4)(g).

Fee Estimates

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, § 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, § 10(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.MLR. 32.06(4).:

Current Petition

In its October 22, 2019 petition the Office requests “a waiver of statutory limits on fees that may be assessed in responding to a request for public records,” The Office indicates “[t]he Office’s IT Division conducted a search for records using the search parameters provided in the request. This search revealed over 3,200 responsive emails. The Office initially responded to the Requestor on October 15, 2019 and will provide the Requestor a response within 10 business days of receipt of the request in accordance with G. L. c. 66, § 10(b). ”

The Office states “[w]hereas records responsive to this request are emails sent from Supervisor of Records Rebecca Murray, who is involved in various legal issues including litigation, as well as personnel matters, we believe that many, if not all, of the responsive records will require segregation and/or redaction.” The Office explains that they believe “many responsive records contain attorney-client privileged communications” and also “likely contain material that is exempt from disclosure under Exemption (c), such as medical and personnel information, as well as information the disclosure of which may constitute an unwarranted invasion of personal privacy.”

Valerie J. Connolly . . SPR19/2166 Page 3 October 23, 2019

The Office “estimates it will take 30 seconds to review each email to determine whether the emails, or portions thereof, are exempt from disclosure and/or required by law to be segregated or redacted. The Office will not assess a fee for the first 4 hours of time to search for, compile, segregate, redact or reproduce the records requested. The hourly rate of the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce the requested records exceeds $25 per hour, however, the Office will assess a fee of $25 per hour for this task.”

The Office notes it “continues to be willing work with the Requestor in order to reduce costs and/or provide records more efficiently. In particular, the Requestor may wish to provide specific timeframes for responsive records, indicate whether the Requestor seeks emails that pertain to certain subjects or recipients, or clarify whether the Requestor seeks attachments that * may be included with responsive emails.”

I find the Office has met its burden to explain how, given the nature of the responsive

records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). .

Conclusion

Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the Office is permitted to charge for time spent segregating and redacting the requested records.

Please note the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4), 10A(c). .

Sincerely,

Kolecea. Muna

Rebecca S. Murray

Supervisor of Records cc: Framingham Reporter