Framingham Reporter v. Office of the Secretary of the Commonwealth - Administrative Services Division (SPR 20192264)

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

Rebecca S, Murray Supervisor of Records

November 21, 2019 SPR19/2264

Valerie Connolly

Records Access Officer

Administrative Services Division

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

Boston, MA 02108

Dear Ms. Connolly:

I have received the petition of Framingham Reporter appealing the response of the Office of the Secretary of the Commonwealth (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on October 9, 2019, the requestor requested “. . . all email Sent by Supervisor of Records Rebecca Murray from January 1, 2019 to the present date.” The Office provided an initial response on October 15, 2019, which included a fee estimate and suggested the requestor narrow his/her request. After the requestor’s notification that he/she would proceed with the original request, the Office provided another response on October 24, 2019, including a fee estimate. Objecting to the fees, the requestor petitioned this office and this appeal, SPR19/2264, was opened as a result.

The Public Records Law

The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26).

It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record.

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 Connolly SPR19/2264 Page 2 November 21, 2019

_ If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records. custodian must provide the responsive records. ;

Fee estimates — agencies

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).

The Office’s October 15" response

In its October 15, 2019 response, the Office stated that a search by its IT Division revealed over 3,200 responsive emails. The Office explained that “[g]iven that these emails will likely contain some sensitive materials, such as attorney-client privileged communications,” the records would have to be reviewed before production, The Office explained that 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 indicated that it will assess a fee of $25 per hour although the rate of the lowest paid employee capable of performing the task of producing responsive records exceeds that amount. The Office also indicated that it will not assess a fee for the first four hours.

Further, the Office suggested that in order to reduce the cost of producing records, the requestor may provide additional information regarding the records sought, and provided certain options in which the requestor may narrow the request.

. The Office’s October 24" cost estimate

After the initial response, the requestor responded in an email dated October 16, 2019, and indicated that the Office proceed with the original request. In its October 24" cost estimate, the Office indicated that its search produced 2,920 responsive email records. The Office reiterated that emails may likely “. . . contain some sensitive materials, such as attorney-client

Valerie Connolly SPR19/2264 Page 3 November 21, 2019

privileged communications,” which needs to be redacted from the responsive records. The Office indicated that it would require 30 seconds to review and redact each email at a rate of $25 per hour. Accordingly, the Office provided a cost estimate of $500.00, comprised of 30 seconds to review each of the 2,920 responsive emails: .. . 1,460/60 minutes equals 24 hours. After subtracting the first 4 hours of time spent reviewing these records, the total is 20 hours at a rate of $25/hour which equals $500.00.” The Office further suggested that the requestor may narrow the request and indicated that it is not assessing a fee for the time to search for responsive records.

Fees for segregation and/or redaction time

An agency may not charge for segregation and redaction unless required by law or a petition has been filed and approved by the Supervisor of Records. G. L. c. 66, § 10(d);-see also 950 C.M.R. 32.06(4).

The Office previously submitted a petition related to the ability to assess fees for time spent segregating and/or redacting responsive records. See SPR19/2166 Determination of the Supervisor of Records (October 23, 2019). Please refer to the determination in SPR19/2166 for analysis of this issue.

Current appeal

In the requestor’s appeal petition, the requestor states that “I am appealing the below fee estimate to your office as being improper and not in accordance with the Public Records Law and its access regulations. In particular, the RAO has failed to justify the estimated hours since the RAO has not cited any exemptions to the Public Records Law, nor has the RAO provided _ any specificity as to how any cited exemptions would apply to justify redaction or withholding of any of the requested records, and therefore has not justified the amount of time estimated.” The requestor also states that “[t]he RAO has not cited any exemptions that would apply to the requested records, Accordingly the RAO has failed to meet the burden of specificity required under the law, and the fee estimate provided is not proper under the Public Records Law and its access regulations.” , .

The Office’s responses indicated that it will require 24 hours to produce responsive records. Thus, “. . . 30 seconds to review each [of the 2,920 responsive emails] to determine whether the emails, or portions thereof, are exempt from disclosure and/or required by law to be segregated or redacted” at a rate of $25.00 per hour.” The Office also indicated that redaction is necessary because, “. . . these emails will likely contain some sensitive materials, such as attorney-client privileged communications ...” Hence, where the Office has indicated the number of hours needed to produce the records and indicated that redaction is required by law pursuant to the attorney-client privilege, it is unclear the nature of the requestor’s objections. The requestor must clarify this issue.

Valerie Connolly SPR19/2264 Page 4 November 21, 2019

Further, in the appeal petition, the requestor states that “[t]he initial response on October 15, 2019, was also not a proper and complete response under the Public Records Law and its access regulations, since it did not include a fee estimate and also did not cite any exemptions or provide the requisite specificity.”

Upon review of the file, the Office provided an initial response within three business days of receipt of the request, advising the requestor of the results of the search for responsive records, indicating that the records may contain attorney-client privileged communications, hence, the need to review and redact portions of the responsive records. The initial response further indicated the hourly rate of the lowest paid employee capable of performing the task and also suggested that the requestor modify the request to reduce the cost of producing records. The Office further provided a subsequent response within the ten business days required to respond under the Public Records Law, reiterating the hours required to redact and/or segregate responsive records pursuant to the attorney-client privilege, and providing a cost estimate. As such, whereas both responses were provided within the statutory time period, included a fee estimate for the cost of producing responsive records, and stated the Office’s intent to redact records pursuant to the attorney-client privilege, it is unclear what the requestor is objecting to as

. not a proper and complete response under the Public Records Law and its access regulations .” The requestor must clarify this issue.

Conclusion

Accordingly, in light of the above, I find the requestor’s appeal is unclear as to his or her objections to the responses provided to the request. The requestor may resubmit his or her appeal to this office once he or she clarifies these matters. See 950 C.M.R. 32.08(1)(f) (all petitions for appeal shall be in writing and shall specifically describe the nature of the requestor’s objections

to the response or failure to provide a timely response).

Dlecen

Rebecca S, Murray fableeca. Mawar}

Supervisor of Records

ce: Framingham Reporter