Itai Vardi v. Executive Office of Energy and Environmental Affairs (SPR 20210180)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 3, 2021 SPR21/0180 Benjamin A. Goldberger, Esq. Deputy General Counsel Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Goldberger: I have received your petition on behalf of the Executive Office of Energy and Environmental Affairs (EEA/Office) requesting permission to charge for time spent segregating or redacting requested records. G. L. c. 66, § 10(d)(iv). As required by law, the Office furnished a copy of this petition to the requestor. Id. On January 15, 2021, Itai Vardi requested “[a]ny and all communications to and from (including CCs and BCCs) EEA Secretary KatieTheoharides, from 1.1.2021 to 1.14.2021, and which include any or all of the terms ‘SB2995,’ ‘Senate Bill 2995,’ ‘climate bill,’ ‘next-generation roadmap.’” 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). The second prong of the test is whether the fee represents an actual and good faith 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

Benjamin A. Goldberger, Esq. SPR21/0180 Page 2 February 3, 2021 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). In its January 27th petition, the Office requests “… approval to assess a fee of up to $118.75 for costs associated with responding to a public records request from Itai Vardi submitted electronically on January 15, 2021.” The Office indicates “[t]he basis for this estimate is: 1 hour of staff time spent retrieving records and conducting an initial review. 6.75 hours of staff time to review and redact the records (90 seconds per message x 275 messages = 6.875 hours). While some messages may be reviewed rather quickly, others will require more time to review and redact. 1 additional hour of staff time to prepare documents for production and produce them.” The Office states “[w]e have conducted a preliminary search for responsive records through the Executive Office of Technology Services and Security (EOTSS) and communications with the Secretary…there appear to be approximately 275 responsive messages. However, a significant number of these messages will contain potentially privileged materials and materials exempt from disclosure under the Public Records Law and other statutes, including without limitation M.G.L. c. 4, § 7, cl. 26 (a), (c) and (d) … each message will require an average of 90 seconds to review and redact or exclude from the production. While some

Benjamin A. Goldberger, Esq. SPR21/0180 Page 3 February 3, 2021 messages will be short with no attachments, others will be longer or will have extensive attachments. A preliminary review of these messages indicates that a number of messages will be exempt in their entirety, thus speeding the review, segregation and redaction process significantly as compared to needing to redact portions of a message.” The Office explains “[t]he laws requiring redaction may include the Fair Information Practices Act and will include the Massachusetts Rules of Professional Conduct and the common law attorney client privilege: • The Fair Information Practices Act (‘FIPA’) prohibits the disclosure of ‘personal data.’ Some of the messages to Secretary Theoharides are from members of the public, who may have included personal contact information that is exempt under subsection (c) and therefore may qualify as ‘personal data’ under FIPA. • The Massachusetts Rules of Professional Conduct and the common law prohibit an attorney from releasing privileged materials without the consent of a client. In this case, EEA has not waived the privilege with respect to any privileged material contained in the requested messages. The messages include a number of emails from EEA lawyers providing legal advice relating to the content of legislation that was, during the relevant time period, on the Governor’s desk.” The Office indicates “[s]egregation and redaction of messages often involves the application of multiple exemptions to the public records law to a single message. Some information is simultaneously protected by more than one exemption or different exemptions depending on context or the time of disclosure. The fee estimates provided are for the segregation and redaction process as a whole, and in the view of undersigned counsel, cannot be split up by exemption.” Given the public interest served by limiting the cost of public access to the requested records, permission to charge for time spent segregating or redacting responsive records cannot be granted. However, this does not preclude the Office from charging for segregation and redaction that is required by law under Exemption (a). Conclusion Accordingly, I decline to approve the Offices’s petition to assess a fee for segregation and redaction. Please note, however, this does not preclude the Office from charging for segregation and redaction that is required by law under Exemption (a). Sincerely, Rebecca S. Murray Supervisor of Records cc: Itai Vardi