Susan L. Bach v. Office of the Attorney General (SPR 20213016)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 30, 2021 SPR21/3016 Lorraine Tarrow, Esq. Assistant Attorney General/Records Access Officer Office of the Attorney General One Ashburton Place Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Susan Bach appealing the response of the Office of the Attorney General (Office/AGO) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On September 10, 2021, Ms. Bach stated she was requesting: …any other public records of communications regarding the aforementioned matters, including the various public records requests, that the AGO has compiled since 2015. This request includes any communications between the AGO, [identified individuals] or their representatives. Previous appeal This request was the subject of a previous appeal. See SPR21/2542 Determination of the Supervisor of Records (October 18, 2021). In my October 18th determination, I directed Ms. Bach to clarify the first part of her September 10th request and closed the appeal. Subsequently, on October 26, 2021, Mr. Bach requested 57 categories of records regarding certain matters and correspondences from over 41 individuals and entities. The Office provided two responses on November 9, 2021, including a fee estimate. Unsatisfied with the Office’s response and objecting to the fees, Ms. Bach petitioned this office and this appeal, SPR21/3016, was opened as a result. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access 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

Lorraine Tarrow, Esq. SPR21/3016 Page 2 November 30, 2021 to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Bach’s purpose in making the request has no bearing on the public status of any existing responsive records. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Office’s November 9th responses SPR21/2542 In its November 9, 2021 response, the Office provided a fee estimate regarding Ms. Bach’s September 10th request, which includes the following: [1] Internal notes, memos, emails regarding Bach, and others, related to the “Bach Matters” public records requests from 2015 to the present. This includes any notes of discussions with the press office. [2] [A]ny other public records compiled in the AG’s office regarding my requests for public records since 2015[.] [3] [A]ll [internal] “Records related to Public Records Requests” records from January 1, 2015 … to date … and any communications with the media department regarding these matters generally. [4] Any communication in any department, including the press/media department, regarding [a named individual] …[.]

Lorraine Tarrow, Esq. SPR21/3016 Page 3 November 30, 2021 Fee estimate – agencies 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 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). In its November 9, 2021 fee estimate, the Office states that Ms. Bach’s “. . . October 26 Letter ‘clarifies’ only that the scope of [her] request is so broad as to include all records within the entire AGO that reference [her] name from January 1, 2015 to October 26, 2021. Based on that interpretation, . . . [a]fter running a search of all AGO electronic records within the requested time frame for ‘Susan Bach’ with no other limiting parameters, we have identified approximately two thousand four hundred and fifty (2,450) electronic items that may potentially be responsive to your request . . .” The Office “. . . estimate[s] that the labor required to search for, identify, and review these records for responsiveness and information protected by law amounts to two hundred and five (205.0) hours. This estimate accounts for: one (1.0) hour already expended by staff to search for records as outlined above; one hundred twenty-two and one half (122.5) hours for qualified staff to review the records found and, as necessary, redact protected information or otherwise initially segregate the records; and eighty-one and one half (81.5) hours for an attorney to then review and further segregate the records, all at the rate of $25.00 per hour.” The Office “. . . estimate[s] the average time to review each item, depending on its length and content, is three (3) minutes per item for our initial review and two (2) minutes per item for attorney review. . . . [The Office does] not anticipate that any AGO staff with a salary of less than $25.00 per hour can perform the tasks as outlined above.” The Office indicates that no fees shall be charged for the first 4 hours and provides that “. . . the total amount of chargeable labor to respond to this request without any further clarification is two hundred and one (201.0) hours at the rate of $25.00 per hour, which amounts to $5,025.00. Please be advised that, given their nature, we expect to redact or withhold some of these records insofar as they constitute attorney work product as articulated in D[a]Rosa v. City

Lorraine Tarrow, Esq. SPR21/3016 Page 4 November 30, 2021 of New Bedford and/or are privileged attorney-client communications seeking or providing legal advice that are likewise protected from disclosure. . . . Please also note that upon review, we may determine that some of the responsive records or segregable portions thereof fall within exemptions to the public records law or privileges other than those noted above.” Based on the Office’s response, it is unclear how it requires “(3) minutes per item for . . . initial review and two (2) minutes per item for attorney review. . . .” The Office must clarify how it requires 5 minutes per each item to review, segregate, and/or redact. Also, the Office must explain how much time is needed to review, segregate or redact the records. Further, the Office states that it “. . . may determine that some of the responsive records or segregable portions thereof fall within exemptions to the public records law or privileges other than those noted . . .” Based on the Office’s response, it is unclear if it is assessing a fee for segregation and/or redaction of records not required by law. An agency may not charge for segregation and redaction unless required by law or a petition has been filed and approved by the Supervisor of Records. G. L. c. 66, § 10(d); see also 950 C.M.R. 32.06(4). The Office must clarify this matter. This office encourages Ms. Bach and the Office to communicate further 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). Other requested records/Previous appeals With respect to the other portions of Ms. Bach’s October 26th request, in its November 9, 2021 letter, the office indicates “. . . that the global request [Ms. Bach] now submit[s] is identical to the request to which we responded in 2016. We provided you with more than ten thousand (10,000) pages of records free of charge that were responsive to an aggregated request for all records we possess ‘related to’ the same matters you re-articulate in 2021. [The Office] withheld a relatively small number of pages of records that were, and still are, exempt from disclosure under G.L. c. 4, § 7, cl. 26(d), attorney-client privileged, or both. . . . Accordingly, we have no further response to your re-submitted requests.” However, the Office states that it would provide Ms. Bach with “. . . the 918 pages of records [she] claim[s] [she] never received through Interchange File Transfer. . . .” These records were the subject of previous appeals. See SPR13/0215 Determination of the Supervisor of Records (January 15, 2014); SPR14/0108 Determinations of the Supervisor of Records (March 6, 2014, April 9, 2014, and May 5, 2014); SPR17/0859 Determination of the Supervisor of Records (July 11, 2017); SPR17/0976 Determination of the Supervisor of Records (July 31, 2017); SPR17/1179 Determination of the Supervisor of Records (September 7, 2017); SPR17/1203 Determination of the Supervisor of Records (September 14, 2017); and

Lorraine Tarrow, Esq. SPR21/3016 Page 5 November 30, 2021 SPR17/1589 Determination of the Supervisor of Records (November 22, 2017). In the November 22nd determination, I indicated that the Office intended to provide a supplemental response regarding its attorney-client privilege claim. The Office provided a response on January 31, 2018. In its January 31st response, the Office explained that “. . . the 66 email records that it withheld were. . . intra-agency emails in which Assistant Attorneys General (AAsG) have sought, and/or been given, legal advice from other AAsG who have more expertise in the issues that were at hand. . .” The Office further explained that “. . . the AAsG appointed and employed by the Attorney General, a ‘public officer,’ serve as her legal counsel in litigation and investigative and other matters that are undertaken on behalf of the Attorney General, the AGO, and/or the Commonwealth.” The Office asserted that “. . . the communications were between attorneys, the Attorney General and the AGO were the clients, and the attorney-client privilege was not waived.” In addition, the Office provided a privilege log of the 66 communications that were withheld from disclosure. The Office cited Suffolk. Based on the Office’s response, I find that it has met its burden to withhold these email communications from disclosure under the attorney-client privilege. As such, I decline to opine on the Office’s Exemption (d) claim, supporting non-disclosure of the records. Accordingly, I will consider the matters regarding these portions of Ms. Bach’s October 26th request closed. If Ms. Bach is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Conclusion Accordingly, I find the Office is to provide Ms. Bach with a response regarding its fee estimate, in a manner consistent with this determination, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Susan Bach