Seth Handy v. Department of Energy Resources (SPR 20213048)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 19, 2021 SPR21/3048 Rachel Graham Evans, Esq. Deputy General Counsel Department of Energy Resources 100 Cambridge Street, Suite 1020 Boston MA, 02114 Dear Attorney Evans: I have received your petition on behalf of the Department of Energy Resources (Department) 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)(d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor, Attorney Seth Handy of Handy Law, LLC. G. L. c. 66, § 10(d)(iv). In a letter dated November 2, 2021, Attorney Handy requested four categories of records concerning the Department. 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

Rachel G. Evans, Esq. SPR21/3048 Page 2 November 19, 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) must 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). 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. 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).

Rachel G. Evans, Esq. SPR21/3048 Page 3 November 19, 2021 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 November 17, 2021, the Department “…seeks fees and an extension of time to respond to a public records request from Attorney Seth Handy, dated November 2, 2021.” The Department notes it “…consulted with staff members, and conducted a comprehensive search of [its] records in response to the Request. [The Department] has made a good faith estimate that it may hold approximately 300 records potentially responsive to the Request.” Further, the Department states it “…has an obligation to ensure that proper procedures are maintained to prevent the dissemination of information which is protected from disclosure by law.” The Department explains, “[t]his requires careful review and segregation of records before they are produced to a requestor. This fee estimate is for the search, segregation, and redaction process as a whole, and in the view of undersigned counsel, cannot be split up by exemption. These potentially responsive records may contain materials exempt from disclosure under the Public Records Law, including without limitation the exemptions at G.L. c. 4, § 7, cl. 26 (a), (b), (c), (d), (e) and (o). As a general matter, [the Department’s] records often include exempt information such as internal meeting call-in codes, exempt under exemption (b); staff private phone numbers, exempt under exemption (c); and possibly deliberative process materials, again mixed in with email communication.” The Department estimates “…at least 28 hours of staff time to respond to the Request…[the Department] has waived the fee for the first four hours of time assessed for the Request, and has not included them in the 24 hours, at $25 per hour, in its fee estimate of $600.” The Department posits that “[t]his estimate represents an actual and good-faith representation of the cost that is necessary and reasonable, and is not designed to limit, deter, or prevent access to requested public records. [The Department] therefore requests that the Supervisor of Public Records approve the assessment of this fee.” With respect to time, the Department “…seeks an extension of 20 business days.” The Department asserts that “[t]he proposed extension is warranted because the magnitude and complexity of the Request will require extensive staff time and unduly burden the other responsibilities of this office, such that responding to the Request within the statutory timeline is beyond the capacity or the normal business hours of operation of the agency to produce the request without the extension. See G.L. c. 66, § 10(c)(iii).”

Rachel G. Evans, Esq. SPR21/3048 Page 4 November 19, 2021 Conclusion It is my determination that given the nature of the requested records and the explanation in its petition, the Department is permitted to charge for time spent segregating and redacting the requested records. Further, in light of the above, I find the Department has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the Department an extension of 20 business days to furnish copies of records responsive to Attorney Handy’s request. See G. L. c. 66, § 10(c). Please note the Attorney Handy 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), l0A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Seth Handy, Esq.