Nathaniel Story v. Office of the Secretary of the Commonwealth - Administrative Services Division (SPR 20202390)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 8, 2020 SPR20/2390 Valerie J. Connolly Records Access Officer Office of the Secretary of the Commonwealth One Ashburton Place, Room 1710 Boston, MA 02108 Dear Ms. Connolly: I have received your petition on behalf of the Office of the Secretary of the Commonwealth (Office) requesting permission for a waiver of statutory limits on fees that may be assessed in responding to a request. G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Office furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On November 22, 2020, Nathaniel Story requested “appeals case files of the Public Records Division from 2017 to present. I am especially interested in the electronic records that governmental entities have submitted to the Public Records Division after a successful appeal.” Petition 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's petition to allow the agency 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

Valerie J. Connolly SPR20/2390 Page 2 December 8, 2020 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; 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 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 December 2, 2020, petition, the Office requests “a waiver of statutory limits on fees that may be assessed in responding to a request for public records.” The Office indicates “[a] staff member of the Public Records Division conducted a search for the records in the scanned case files for each year. This search revealed 7,439 total case files from 2017 through 2020.” The Office indicates “[t]he 7,439 case files need to be segregated to determine if they are responsive to Mr. Story’s request. Whereas records responsive to this request are case files, which contain exempt information under the Public Records Law, responsive records will require segregation and/or redaction.” The Office explains it “believes responsive records likely contain material that is exempt from disclosure under Exemption (c), such as medical and personnel information, as well as information the disclosure of which may constitute an unwarranted invasion of personal privacy.”

Valerie J. Connolly SPR20/2390 Page 3 December 8, 2020 The Office “estimates it will take one (1) minute to review each page in a case file to determine whether a case file, or portions thereof, are responsive to the request, or exempt from disclosure to be segregated or redacted. The number of pages per case file can range from two (2) to thirty (30) or more pages. It is estimated an average number of pages per case file is three (3) pages. Therefore, there are approximately 22,317 pages (7,439 case files × 3 pages) that will need to be reviewed.” The Office indicates it “will not assess a fee for the first 4 hours of time to search for, compile, segregate, redact or reproduce the records requested. The hourly rate of the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce the requested records exceeds $25 per hour, however, the Office will assess a fee of $25 per hour for this task. See G. L. c. 66, § 10(d)(ii). The Office’s estimate is calculated at (22,317 minutes/60 minutes equals 371.95 hours). After subtracting the standard four (4) hours the total is 367.95 hours, at a rate of $25/hour equals $9,198.75.” The Office notes it “continues to be willing work with Mr. Story in order to reduce costs and/or provide records more efficiently. In particular, Mr. Story may wish to provide specific timeframes for responsive records, or indicate whether he seeks case files that pertain to certain subjects or recipients.” I find the Office has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the Office is permitted to charge for time spent segregating and redacting the requested records. Please note the requestor 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, Rebecca S. Murray Supervisor of Records cc: Nathaniel Story