Itai Vardi v. Department of Public Utilities (SPR 20200541)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen•isor ofR ecords March 23, 2020 SPR20/0541 Malwina Burzec, Esq. Legal Division Department of Public Utilities One South Station, 5th Floor Boston, MA 02110 Dear Attorney Burzec: I have received your petition on behalf of the Department of Public Utilities (DPU) requesting an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § lO(c); G. L. c. 66, § lO(d)(iv). As required by law, DPU furnished a copy of this petition to the requestor. Id. On February 28, 2020 Itai Vardi of the Energy and Policy Insntute requested 2 categories ofrecords. He amended his request on March 11th and now seeks the following records: 1. Any and all correspondence (to, from, CC, and BCC) Andreas Thanos, from October 1, 2019, to the date of processing of this request containing the term "NARUC" with all attachments, disregarding any google alerts, news clippings, and newsletters; and 2. Any and all correspondence between Andreas Thanos and each of the following individuals: (1) Timothy Alan Simon; (2) Judith Schwartz; (3) Zach Kravitz; and (4) Dan Lapato, from October 1, 2019, to the date of processing of this request, with all attachments, disregarding any google alerts, news clippings, and newsletters. Petitions regarding 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, § lO(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 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

Malwina Burzec, Esq. SPR20/0541 Page 2 . March 23, 2020 of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § lO(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 9r 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 deterrriination 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 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, § 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, § lO(d)(iv). See G. L. c. 66, § lO(d)(ii); 950 C.M.R. 32.06(4). DPU's petition to assess fees DPU asserts " ... the responsive records may contain information that is specifically exempt from disclosure pursuant to G.L. c. 4, § 7, cl. 26(c), (d), and (n), and G.L. c. 25 § 5D, including: personally identifiable information; inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the DPU; critical infrastructure information (safety program plans and system security plans); and trade secrets, confidential, competitively

Malwina Burzec, Esq. SPR20/0541 Page 3 March 23, 2020 sensitive, or other proprietary information. Accordingly, the information must be segregated and redacted before the records are produced to the requester." You explain that Mr. Thanos, who is one of the individuals mentioned in the request, is DPU's "designated Gas Policy Specialist." You note that, for example, with respect to Exemption (n), "[i]t is possible that some documentation related to the Department's gas policies will fall under this exemption." In light of the information provided in DPU's petition, I find it 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). To the extent the responsive records contain the exempt information as described above, DPU may assess a fee for segregation and redaction. Petitions for an extension of time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undetiaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § lO(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b).

Malwina Burzec, Esq. SPR20/0541 Page 4 March 23, 2020 DPU's petition for an extension oft ime to produce records With respect to the volume ofresponsive records, you assert "[t]he DPU conducted a preliminary search based on the amended request and identified over 2,000 email results that amount to 5,040 pages. Due to the magnitude of the records that DPU's Records Access Officers will have to review, the DPU has determined it will require an extensive amount of time to complete the request." You explain, in part, that DPU will need to review each page for potentially exempt information and that "[t]he DPU respectfully requests the Supervisor grant our petition for an extension of 20 business days to provide the responsive records to the requester." I find that in light of the volume of responsive records, as well as the need to review the records for potentially exempt information, DPU has established good cause to permit an extension of time. G. L. c. 66, § lO(c)(i)-(ii). I hereby grant DPU an extension of 20 business days beyond the time allowed in G. L. c. 66, § lO(b)(vi). See G. L. c. 66, § lO(b)(vi) (an agency may provide a timeframe not to exceed 15 business days to produce responsive records). Please note the time may begin to run once DPU receives payment. G. L. c. 66, § 10( c ). Conclusion Accordingly, in light of its petition, I find DPU has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, DPU may assess a fee for segregation and redaction. Further, I find DPU has established good cause for a time extension of 20 business days as described above. When preparing a fee estimate for the provision of the requested records, DPU is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § lO(d)(iv) (requiring the amount of the fee must be reasonable). Mr. Vardi appeal DPU's fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Mr. Vardi 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), lOA(c). Rebecca S. Murray Supervisor of Records cc: Itai Vardi