Andrew Brownsword v. Department of Energy Resources (SPR 20201237)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 30, 2020 SPR20/1237 Dan Burstein, Esq. Legal Counsel Massachusetts Department of Energy Resources 100 Cambridge Street, Suite 1020 Boston, MA 02114 Dear Attorney Burnstein: I have received your petition on behalf of the Massachusetts Department of Energy Resources (Department) seeking 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, it is my understanding that the Department furnished a copy of this petition to the requestor. Id. In a letter dated July 7, 2020, Andrew Brownsword requested, “[all] public records regarding the MOR-EV program sent, received or originated by Scott Kjellberg from 12/1/2019 until 1/15/2020.” Petition 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 (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). 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

Dan Burnstein, Esq. SPR20/1237 Page 2 July 30, 2020 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). Petitions 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 a municipality’s petition to allow the municipality 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 municipality 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

Dan Burnstein, Esq. SPR20/1237 Page 3 July 30, 2020 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 (4) 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 CMR 32.06(4). Current Petition In its July 22nd petition, the Department requests “fees and an extension of time to respond to the tenth public records request regarding the MOR-EV program from Andrew Brownsword.” Specifically, 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 notes, “DOER’s physical offices have been closed from March 16, 2020 to the present. Considering the above circumstances, DOER has limited access to both paper and electronic files. Nevertheless, DOER has consulted with staff and conducted a search of DOER records to which DOER currently has access.” The Department has identified approximately 637 potentially responsive records and expressed “[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.” The Department posits “these records would likely contain the following information that must be segregated and redacted as required by law: 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 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).” The Department notes, “[n]ormally, an agency shall not assess a fee for the first four hours of time spent searching for, compiling, segregating, redacting and reproducing a requested record. 950 CMR 32.07(l)(1). However, as noted above, the Request is the tenth in a series of public records requests on the MOR-EV program, for which DOER has already expended well over a hundred hours of time.”

Dan Burnstein, Esq. SPR20/1237 Page 4 July 30, 2020 Although the Department states “these records would likely contain the following information that must be segregated and redacted as required by law,” it has not provided information regarding what records it intends to produce and why such records are likely to contain exempt information. Conclusion I find the Department has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Please note, however, this does not preclude the Department from charging for segregation and redaction that is required by law. With respect to the Department’s time petition, I find the Department has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the Department an extension of 20 business days to furnish copies of records responsive to Mr. Brownswords’s request. See G. L. c. 66, § 10(c). To the extent possible, the Department must provide responsive records on a rolling basis. Please be advised, agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). When preparing a fee estimate for the provision of the requested records, the Department is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must provide a response to Mr. Brownsword within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Brownsword may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Brownsword