Haji El v. Office of the Secretary of the Commonwealth - Administrative Services Division (SPR 20212528)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 7, 2021 SPR21/2528 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) seeking an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Office furnished a copy of this petition to the requestor, Haji El. Id. On September 15, 2021, Mr. El requested “…certified copies of the Oath of Office/Allegiance for Judges, District Attorneys, court appointed Attorneys, Prosecutors, clerk-magistrates, et cetera for the State of Massachusetts.” Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). 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 SPR21/2528 Page 2 October 7, 2021 If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Fee Estimate 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 CMR 32.06(4). Current Petition In its September 30th petition, the Office “seeks an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records.” The Office states, “[w]e are currently reviewing the responsive records; however, due to the substance of the request, we believe that many, if not all, of the responsive records will require redaction under Exemption (o).” Further, “[t]he Massachusetts Public Records Law states ‘Exemption (o) applies to the home address, personal email address or home telephone number of government employees.’ See G. L. c. 4, § 7 (26)(o). Upon review, many of the Oaths of Office contain the addresses and telephone numbers of respective government employees.” The Office asserts that 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, this office seeks to assess a fee of $25 per hour for this task.”

Valerie J. Connolly SPR21/2528 Page 3 October 7, 2021 The Office also notes it seeks “…an additional 20 business days to furnish responsive records given the volume of material and the need for careful review.” The Office notes, “[t]he request does not include the name of employees nor is a date range provided. These factors will make it difficult to locate records as they are not maintained electronically and requires staff members to locate paper files in order to fulfill the request.” Further, “[t]he paper files contain a minimum of 2 pages in length and this office estimates it will take 1 minute to review each page to determine whether the records, or portions thereof, are exempt from disclosure and/or required by law to be segregated or redacted.” The Office posits that “[t]he fee is reasonable as it relates to the specific redaction, and the fee is not designed to limit, deter or prevent access to public records; rather, it is meant to protect the Office from inadvertently revealing confidential personal information. To the extent possible, the Office will provide responsive records on a rolling basis.” Conclusion I find that 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. To the extent the responsive records contain the exempt information as described above, the Office may assess a fee for segregation and redaction. With respect to the Office’s time petition, I find the Office has established good cause to permit an extension of time. See G.L. c. 66, § 10(c)(i)-(iv). I hereby grant the Office an extension of 20 business days to furnish copies of records responsive to Mr. El’s request. See G. L. c. 66, § 10(c). Further, this office encourages Mr. El and the Office 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). Please note, Mr. El 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: Haji El