Peter Vickery, Esq. v. Massachusetts Growth Capital Corporation (SPR 20212529)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 7, 2021 SPR21/2529 Attorney Robert McGovern Massachusetts Growth Capital Corporation Schrafft’s City Center 529 Main St., Suite 201 Charlestown, MA 02191 Dear Attorney McGovern: I have received your petition on behalf of the Massachusetts Growth Capital Corporation (Corporation/MGCC) 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 Corporation furnished a copy of this petition to the requestor, Attorney Peter Vickery. Id. In a letter dated September 20, 2021, Attorney Vickery requested 17 categories of records related to the Corporation’s Small Business Technical Assistance Grant Program. 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

Attorney Robert McGovern SPR21/2529 Page 2 October 7, 2021 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 (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 September 30, 2021 petition, the Corporation seeks “approval to assess a fee estimated at $3,960.00 for costs associated with responding to a public records request from Peter Vickery submitted electronically on September 20th, 2021 for various records related MGCC’s Small Business Technical Assistance Grant Program.” The Corporation explains “several of the requests yield a large amount of responsive records that will contain potentially privileged materials and materials exempt from disclosure under the Public Records Law and other statutes” including “documents [that] may involve trade secrets or commercial or financial information, and therefore… will be redacted or withheld from disclosure pursuant to M.G.L. c. 40W, § 2(i)” as well as “records [that] may contain social security numbers, home addresses, bank account and other information that is exempt pursuant to the second (privacy) clause of G.L. c. 4, § 7(26)(c).” The Corporation states that they “have conducted a search for responsive records and are providing easily accessible records without a fee” but that “[g]iven the volume of material that must be reviewed and potentially redacted, in accordance with M.G.L. c. 66, § 10(b) and 950

Attorney Robert McGovern SPR21/2529 Page 3 October 7, 2021 C.M.R. 32.07(2) [they] have determined that a fee is necessary to process records responsive to requests #3, #4, #7, #9 and #10.” The Corporation explains that, with respect to “[r]equests #3 and #4 for [p]roposals… [t]here are a total of 155 proposals responsive” and that each proposal “contain[s] an average of 50 pages.” Using the estimate that it will take 1 minute per page to segregate the records, the Corporations estimates that “it will require approximately 129.6 hours to search and segregate the proposals to fulfill requests #3 and #4.” With respect to “[r]equest #7 for [f]inal [r]eports” the Commission states that “[t]here are a total of 88 reports responsive.” Using the same time per page, the Commission estimates that it will require “approximately 29.8 hours to search and segregate the proposals to fulfill request #7.” In regards to “[r]equest #9 and #10 for [c]orrespondences,” the Commission states that there are “approximately 15 records potentially responsive to your request for correspondences,” and that it will take approximately 15 minutes to search for and segregate these records.” Altogether, the Corporation estimates “the total time for search and segregation to be 159.4 hours to fulfill requests #3, #4, #7, #9 and #10.” Charging at a rate of $25 per hour, and “[s]ubtracting the first four hours as not assessed,” the Corporation estimates “the total fee to be $3,960.00.” The Corporation states that “[t]his 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.” Conclusion It is my determination that the Corporation is permitted to charge for time spent segregating and redacting the requested records. When preparing a fee estimate for the provision of the requested records, the Corporation is advised to provide a detailed explanation to the requestor detailing why the amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Corporation must also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. The Corporation must provide a response to Attorney Vickery within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Attorney Vickery may appeal the Corporation’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Attorney Vickery 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).

Attorney Robert McGovern SPR21/2529 Page 4 October 7, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Attorney Peter Vickery