Itai Vardi v. Department of Public Utilities - Legal Division (SPR 20201971)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 19, 2020 SPR20/1971 Gina M. Abbadessa, Esq. Records Access Officer Department of Public Utilities One South Station Boston, MA 02110 Dear Attorney Abbadessa: This office received your petition on behalf of the Department of Public Utilities (Department) requesting permission to charge for time spent segregating or redacting responsive records under G. L. c. 66, § 10(d)(iv). As required by law, the Department furnished a copy of their petition to the requestor. G. L. c. 66, § 10(c). In this matter, on September 30, 2020, Itai Vardi requested “[a]ny and all email communications to and from (including CCs and BCCs) for *each* of the following: Commissioners Matthew Nelson, Robert Hayden & Cecile Fraser, and Hearing Officer Jessica Ellis, from 2.2.2020 to 6.1.2020, and which relate specifically to the hiring of FTI Consulting in D.P.U 19-117.” 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). 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 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

Attorney Abbadessa SPR20/1971 Page 2 October 19, 2020 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). Current Petition In its October 14, 2020 petition, the Department states, “[t]he requested records are likely to contain information that is exempted from public disclosure by G.L. c. 4, §7(26). These include, but are not limited to, exemptions for information that relates to internal rules and procedures, G.L. c. 4, §7(26)(b); information that, if released, would constitute an unwarranted invasion of personal privacy, G.L. c. 4, §7(26)(c); information pertaining to an ongoing deliberative process, G.L. c. 4, §7(26)(d); information relating to critical infrastructure, G.L. c. 4, §7(26)(n); and information subject to the attorney/client privilege.” The Department further notes, “[g]iven that there are approximately 313 messages (which may individually contain multiple pages) of information which the Department must review and redact, this will impose a burden on the Department, which will have to devote limited resources to review and redact these records. The Department adds,“[g]iven the volume of information requiring review, the Department’s good-faith estimate is $291.25. The Department estimates it will expend 15.65 hours to compile the records.” Although the Department expressed “[t]he requested records are likely to contain information that is exempted from public disclosure,” it has not provided information regarding what records it intends to produce and why such records are likely to contain exempt information.

Attorney Abbadessa SPR20/1971 Page 3 October 19, 2020 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. 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 the requestor within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). The requestor 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: Itai Vardi