Andrew Brownsword v. Department of Energy Resources (SPR 20200879)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 9, 2020 SPR20/0879 Rachel Evans Deputy General Counsel Department of Energy Resources 100 Cambridge Street, Suite 1020 Boston, MA 02114 Dear Attorney Evans: I have received your petition on behalf of the Department of Energy Resources (Department) requesting an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. Specifically, on May 14, 2020, Andrew Brownsword requested “ALL public records regarding the MOR-EV program sent, received or originated by certain leadership and staff members (detailed below) of the Department of Energy Resources during the dates specified by individual.” 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 undertaken 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 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

Rachel Evans SPR20/0879 Page 2 June 9, 2020 (vi) the public interest served by expeditious disclosure. G. L. c. 66 § 10(c). 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). Please note, a business day does not include a weekday where a custodian’s office is unexpectedly closed. 950 C.M.R. 32.02. In its June 1, 2020 petition, the Department requests “an extension of time to respond to the eighth public records request regarding the MOR-EV program from Andrew Brownsword...” The Department states that as a result of the Governor’s orders related to the COVID-19 emergency, “DOER’s physical offices have been closed from March 16, 2020 to the present.” The Department “seeks an extension of 20 business days, beyond the time allowed in G.L. 66, § 10(c) (ii)-(iii), to respond to the Request.” The Department explains “[t]his is the eighth of nine public records requests regarding the MOR-EV program, that have been filed by Mr. Brownsword under this State of Emergency, and which have utilized hundreds of hours of DOER staff time to date. Nevertheless, DOER has complied with the Public Records Law, consulted with staff members, and conducted nine separate searches of DOER records in response to Mr. Brownsword’s ongoing series of public records requests. In response to the current Request, DOER has identified approximately 475 potentially responsive records.” The Department further explains “[t]he proposed extension is warranted because the magnitude and complexity of the Request will require extensive staff time and unduly burden the other responsibilities of this office, such that responding to the Request within the statutory timeline is beyond the capacity or the normal business hours of operation of the agency to produce the request without the extension. See G.L.c. 66, § 10(c)(iii).” I find that in light of the efforts undertaken by the Department in fulfilling previous and current requests, as well as the capacity of the Department to produce the records without the extension, the Department has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). I hereby grant the Department an extension of 20 business days beyond the time allowed in G. L. c. 66, § 10(b)(vi). Petitions to Assess Fees The Supervisor of Records (Supervisor) may approve a petition from an agency to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the agency to comply with the request. G. L. c. 66, § 10(d)(iv).

Rachel Evans SPR20/0879 Page 3 June 9, 2020 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 or to charge in excess of $25 an hour for the provision of public 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 the request is not 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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.M.R. 32.06(4). The Department submitted their petition on June 1, 2020, more than ten business days after receipt of the request. In light of the fact the Department has not demonstrated it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records cannot be granted at this time. 950 C.M.R. 32.06(4)(g). Conclusion Accordingly, I find the Department has established good cause for a time extension of 20 business days as described above. However, permission to charge for time spent segregating or redacting responsive records cannot be granted at this time. Please note, Mr. Brownsword has the

Rachel Evans SPR20/0879 Page 4 June 9, 2020 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, Rebecca S. Murray Supervisor of Records cc: Andrew Brownsword