Erin Fowler v. Department of Housing & Community Development (SPR 20210239)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 9, 2021 SPR21/0239 Roberta L. Rubin, Esq. Massachusetts Department of Housing and Community Development 100 Cambridge Street, Suite 300 Boston, MA 02114 Dear Attorney Rubin: I have received your petition on behalf of the Massachusetts Department of Housing and Community Development (Department) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 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 December 10, 2020, Attorney Erin Fowler of Lawyers for Civil Rights (LCR) requested 7 categories of records concerning the Residential Assistance for Families in Transition (RAFT) Program. 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 a municipality’s petition to allow the 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

Roberta L. Rubin, Esq. SPR21/0239 Page 2 February 9, 2021 The second prong of the test is whether the fee represents an actual and good faith representation by the 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 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 its petition dated February 1, 2021, the Department requests permission “to assess reasonable fees for time spent segregating and/or redacting records responsive to a public records request submitted by Lawyers for Civil Rights (LCR).” LCR’s second request seeks “[a]ny and all records related to DHCD’s policies surrounding notice provided to RAFT applicants, timing of RAFT application processing, and opportunities for RAFT applicants to appeal eligibility decisions.” LCR notes the request “includes but is not limited to: (a) internal memoranda; (b) training manuals; (c) training presentations; and (d) operations manuals or operating guidelines.” The Department contends “this request is overbroad and imposes an undue administrative burden...DHCD estimates that for program staff to identify documents responsive to this request as presented, before the work necessary to segregate materials that are subject to production from those that are privileged or subject to exemption, would require approximately 35-50 hours of time at a cost of $875- $1,250.”

Roberta L. Rubin, Esq. SPR21/0239 Page 3 February 9, 2021 LCR’s third request seeks “[a]ny and all records related to data concerning RAFT applicant information and/or processing timelines.” With respect to this request, the Department notes that “...the vast majority of DHCD’s records that would be responsive to this request consist of communications related to policy development. As discussed in our meeting on January 28, DHCD is deeply engaged in policy development relating to the recent creation of the Rental Assistance Processing (RAP) Center, the role of the RAP Center in the deployment of additional funds recently made available under the Consolidated Appropriations Act of 2021, and other operational and programmatic changes that are being considered to create greater efficiencies in our short term rental assistance programs. Accordingly, these requests are exempt from production under the deliberative process exemption.” LCR’s 4th request seeks, “[a]ny and all records related the demographic data of RAFT applicants who were approved, applicants who were denied, and applicants whose applications are still pending.” The Department “believes it has responsive records in the form of data that can be extracted from one or more existing databases, for approved applications only. DHCD expects it would take up to 30 staff hours to extract, compile and review these data for each region.” LCR’s 6th request seeks “[a]ny and all records reflecting any complaints about the RAFT program or its administration by DHCD or any of the HCECs.” The Department explains it “does not maintain a centralized system for making or receiving complaints about the RAFT system. A complete response to this request would require a search and analysis of the email accounts of every DHCD staff member working on the RAFT program as well as mid level to senior staff across the agency.” LCR’s 7th request seeks “[a]ny and all records reflecting steps taken by DHCD to rectify any problems identified with administration of the RAFT program.” The Department states this request “would require DHCD staff working on this project to copy, review and turn over nearly every email and other document produced in that time period...Due to the volume of responsive records, we cannot provide a reasonably accurate fee estimate for fulfilling this request as presented; however, we anticipate that fulfilling the request as presented would require a least 400 hours of staff time to search for and produce responsive documents, and another 800 hours of staff time to segregate and redact privileged and exempt materials.” The Department posits that “...segregation and redaction are permitted pursuant to the privacy exemption (G.L. c. 4, §7(26)(c)), which allows DHCD to redact records that include materials or data relating to specifically named individuals, the disclosure of which would constitute an unwarranted invasion of personal privacy; the deliberative process exemption (G.L. c. 4, §7(26)(d)), which allows DHCD to withhold records that set forth policy positions currently under development at DHCD; and attorney-client privilege, which permits DHCD to withhold certain communications between agency staff and attorneys.”

Roberta L. Rubin, Esq. SPR21/0239 Page 4 February 9, 2021 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 Department from charging for segregation and redaction that is required by law. Conclusion This office encourages Attorney Fowler 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 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 to produce records sought more efficiently and affordably). Sincerely, Rebecca S. Murray Supervisor of Records cc: Erin Fowler, Esq.