Kevin Cassidy v. Department of Energy Resources (SPR 20202586)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 30, 2020 SPR20/2586 Rachel G. Evans, Esq. 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) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, the Department furnished a copy of their petition to the requestor. Id. On December 9, 2020, Attorney Kevin Cassidy requested “the Commonwealth of Massachusetts’ plans to purchase and import 1,200 megawatts of hydropower from Canadian producer Hyrdo-Quebec in order to meet the state’s Clean Energy Standard’s for greenhouse gas (GHG) reductions.” 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 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 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 G. Evans, Esq. SPR20/2586 Page 2 December 30, 2020 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 (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 the Department’s December 24, 2020 petition, it seeks “permission to charge $3,100 to respond to the Request, including $625 for 25 hours of segregation and redaction time, at a rate of $25 per hour.” The Department explains, “[s]taff have said that there could easily be over 1000 records in response to the Request, including internal staff emails. We anticipate that any emails especially will contain both potentially privileged materials and materials exempt from disclosure under the Public Records Law. Given the volume of material that must be reviewed and potentially segregated or redacted, in accordance with M.G.L. c. 66, § 10(b) and 950 C.M.R. 32.07(2) DOER has determined that a fee is necessary to process this production.” In it’s December 23rd response to the requestor, the Department states “DOER will provide a legal review of each record, to determine whether any are subject to an exemption under the Public Records Law. Given the volume of records requested, DOER anticipates that these records will contain potentially privileged materials and materials exempt from disclosure under the Public Records Law, including without limitation M.G.L. c. 4, § 7, cl. 26 (a),(b), (c), (d), (e) and (o). Although we do not know the exact number because we have not yet performed the search, DOER estimates that it may have over 1,000 records, especially if staff emails are requested. (Note, that if DOER spent only 3 minutes per record reviewing each of the 1000 records it would take 50 hours, so 25 hours may be an under-estimate and may need to be adjusted.)”

Rachel G. Evans, Esq. SPR20/2586 Page 3 December 30, 2020 The Department posist that “[g]iven the magnitude and complexity of the request, this 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. Therefore, DOER respectfully requests that the Supervisor of Public Records approve the assessment of this fee.” Although the Department states it “anticipates that these records will contain potentially privileged materials and materials exempt from disclosure under the Public Records 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. This office encourages Attorney Cassidy 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 municipality to produce records sought more efficiently and affordably). 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 Attorney Cassidy within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Attorney Cassidy 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: Attorney Kevin Cassidy