Andrew Brownsword v. Department of Energy Resources (SPR 20200892)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 12, 2020 SPR20/0892 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 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 19, 2020, Andrew Brownsword requested “the names and addresses and EV make and model of the people who received a MOR-EV rebate since program inception (at the rebate application level)” for four identified areas: • Concord (zip code 01742) • Bedford (zip code 01730) • Billerica (zip code 01821) • North Billerica (zip code 01862) 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). 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). 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 SPR20/0892 Page 2 June 12, 2020 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). In its petition, the Department estimates that it will require 5.33 hours to produce the responsive records. Specifically, the Department indicates that it will perform the following tasks: • “2 hours of staff and consultant time spent retrieving four sets of records and conducting an initial review, • 1 hour of staff time to convert records into a format that can be reviewed, redacted, and produced to the requestor, • 1.33 hour of staff time to review and redact the records (20 minutes per set of records x 4 sets of records = 80 minutes). While some records may be reviewed rather quickly, others will require more time to review and redact. • 1 hour of staff time to prepare documents for production and produce them.” The Department states that it “would incur approximately 5.33 hours of staff time to respond to your request. Under the Public Records Law, the first four hours of staff time are free.

Rachel Evans SPR20/0892 Page 3 June 12, 2020 The remaining 1.33 hours, at $25 per hour, are reflected in the fee estimate.” Accordingly, the Department estimates a total fee of $33.25. With respect to redactions, the Department indicates that the responsive records may contain information that may be redacted pursuant to Exemption (c), Exemption (d), and the attorney- client privilege. The Department specifically indicates that the responsive records may require redaction for the following reasons: • Records involving legal issues sometimes (but not always) contain information protected by the attorney-client privilege. This information would be redacted under exemption (a). • Records detailing personally-identifiable information may be protected under the privacy exemption. This information would be redacted under exemption (c). • Records involving policy positions being developed by DOER sometimes (but not always) contain information protected by the deliberative process exemption. This information would be redacted under exemption (d). In his appeal petition, Mr. Brownsword states that he is “anticipating that Ms. Evans many comments about ‘personal information’ means that she will redact names from my request.” In a conversation with a staff attorney of the Public Records Division, the Department indicated that it does not intend to redact the names or addresses of MOR-EV applications, but that the database may contain other personal data provided in the applications that it intends to redact. Given that these records may contain personal data, the Department has met its burden to explain how the request could not prudently be completed without redaction or segregation under applicable statutes. See G. L. c. 66, § 10(d)(iv). Therefore, the Department may assess a fee for the time spent to segregate and redact these requested records. Conclusion In light of the Department's petition, I find the Department 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, the Department may assess a fee for segregation and redaction. Please note, Mr. Brownsword 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,

Rachel Evans SPR20/0892 Page 4 June 12, 2020 Rebecca S. Murray Supervisor of Records cc: Andrew Brownsword