Avi Arusi v. Department of Public Utilities - Legal Division (SPR 20201320)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 13, 2020 SPR20/1320 Carline L. Lemoine, M.Sc. Records Access Officer Department of Public Utilities, Legal Division One South Station, 5th Floor Boston, MA 02110 Dear Carline Lemoine: I have received your petition on behalf of the Department of Public Utilities (Department) seeking permission to assess fees in responding to a request made by Aviv Arusi. G. L. 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 23, 2020, Mr. Arusi requested “residential electric rates in MA (More specifically Eastern MA) for the past 25 years.” 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 an agency or municipality’s petition to allow the agency or 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. 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

Carline L. Lemoine SPR20/1320 Page 2 August 13, 2020 The second prong of the test is whether the fee represents an actual and good faith representation by the agency or 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 Estimate 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 (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 C.M.R. 32.06(4). Current Petition In its petition dated August 6, 2020, the Department “respectfully submits this petition to assess a reasonable fee to produce a supplemental response to the requester.” The Department indicates it “was able to direct the requester to its website to retrieve the requested information for the most recent years. The older records (from 1995-2004) will require that Department staff spend an extensive amount of time to complete the request. Department staff will need to research and determine the docket numbers applicable to the approved rates for that period.” The Department further expressed “as a result of the Commonwealth’s state of emergency to address the COVID-19 pandemic, Department staff are working remotely and have limited access to certain public records.”

Carline L. Lemoine SPR20/1320 Page 3 August 13, 2020 The Department “estimates that reproduction costs associated with [the] request would be $1,775 for 71 hours of employee time, excluding the first four hours.” The Department posits “[t]his estimate represents an actual and good faith representation. The cost is necessary, reasonable and is not designed to limit, deter, or prevent access to requested public records. The Department respectfully requests the Supervisor grant its petition to assess a fee, to provide the remaining records to the requester.” Conclusion In light of the Department’s August 6th petition, I find it is unnecessary to opine on the Department petition because it does not seek to charge in excess of $25.00 for the production of records. Further, this office encourages Mr. Arusi and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii)(an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Any fee estimate by the Department must be in compliance with this determination, the Public Records Law, and its Access Regulations. Sincerely, Rebecca S. Murray Supervisor of Records cc: Aviv Arusi