Susan L. Bach v. Office of the Attorney General (SPR 20213358)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 11, 2022 SPR21/3358 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 appeals This request was the subject of previous appeals. See SPR21/2542 Determination of the Supervisor of Records (October 18, 2021) and SPR21/3016 Determination of the Supervisor of Records (November 30, 2021). In my November 30th determination, I found that the Office had met its burden in claiming the attorney-client privilege to withhold certain records related to previous public records requests. Also, I directed the Office to provide additional information regarding its fee estimate. The Office provided a further response on December 14, 2021. Unsatisfied with the Office’s response, Ms. Bach petitioned this office and this appeal, SPR21/3058, 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 to a record pursuant to the Public Records Law rests on the content of the record and not the 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. SPR21/3358 Page 2 January 11, 2022 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. 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). The Office’s December 14th fee estimate In its December 14, 2021 fee estimate, the Office explains that it “. . . report[s] the number of records that our search terms reveal to be responsive as ‘items.’ This means that each e-mail and each attachment is separately counted as an item regardless of how many pages it consists of. In our experience, we have found that while most e-mails range between one (1) to two (2) pages in length, attachments can range from one (1) page to one hundred (100) pages or more and account for approximately one third of the total number of items.” The Office further explains, “[w]ith the above in mind, the first stages of review are most efficiently accomplished by ‘qualified [AGO] staff,’ which would likely be a paralegal or junior attorney. In this instance, we estimated three (3) minutes for the initial review…” The Office further explains, “where, in this instance, it is unlikely that all of the approximately two thousand four hundred and fifty (2,450) electronic items we initially identified as responsive would be eligible for further review, we have recalculated our good faith estimate to reflect the time it would take for an attorney to review half (½) or one thousand two hundred and twenty-five (1,225) of the electronic items found.” The Office states that it “. . . estimate[s] that the labor required to search for, identify, and review these records for responsiveness and information protected by law amounts to one hundred sixty-four and one quarter (164.25) hours. This estimate accounts for: one (1.0) hour

Lorraine Tarrow, Esq. SPR21/3358 Page 3 January 11, 2022 already expended by staff to search for the records; one hundred twenty-two and one half (122.5) hours for qualified staff to review the approximately 2,450 records found and, as necessary, redact protected information or otherwise initially segregate the records; and forty and three quarters (40.75) hours for an attorney to then review and further segregate approximately 1,225 records, all at the rate of $25.00 per hour.” Without charging for the first 4 hours, the Office indicates that “. . . the total amount of chargeable labor to respond to this request without any further clarification is one hundred sixty and one quarter (160.25) hours at the rate of $25.00 per hour, which amounts to $4,006.25.” The Office clarifies that it is assessing a fee for segregation and redaction “. . . insofar as they constitute attorney work product as articulated in DeRosa v. City of New Bedford and/or are privileged attorney-client communications . . . In our experience, however, during our review we sometimes find records or portions thereof that are statutorily exempt from disclosure, for example criminal offender record information (CORI), tax information, personal data, and personal information, to name a few. The public records law allows custodians to charge for the segregation of these records. If we determined that any discretionary exemptions apply to withhold or redact the records, we would subtract or not add, as appropriate, any chargeable time to do so.” Based on the Office’s response, I find it has met its burden to explain how the indicated amount of time is necessary to search, review, segregate, and/or redact responsive records. The Office and Ms. Bach are encouraged to communicate further to determine whether any responsive records may be provided 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). Previous public records requests - 522 Records In her appeal petition, Ms. Bach states: The AGO’s idea of a detailed index for 522 records was provided on page 5 of their October 17, 2017 letter which consisted of a paragraph of bullet points. The index lacked any detail, let alone sufficient detail. It did not include the names of the persons who wrote the emails, the most basic level of detail. The AG should be ordered to provide an index of those 522 records. . . . There is no ongoing litigation, yet the AGO has not indexed the 522 records they are withholding. As indicated my November 30th determination, this and other issues raised in Ms. Bach’s petition have been the subject of previous appeals, of which determinations have been issued. 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

Lorraine Tarrow, Esq. SPR21/3358 Page 4 January 11, 2022 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 SPR17/1589 Determination of the Supervisor of Records (November 22, 2017). Where these matters have been closed, I decline to further opine on this issue and other related matters. Please note, Superior Court has concurrent jurisdiction. G. L. c. 66, § 10(A)(c). 918 records Further in her petition, Ms. Bach claims that “[t]he AGO has still not produced the 918 records they stated they provided to me in 2016, but never did. Despite my informing the AGO, on November 10, 2021 that I could not access the Massachusetts Interchange System and requesting they mail or simply email the records, I still have not received the records. . . .” In its November 9th response, the Office indicated that it was going to provide Ms. Bach with these records. As such, it is unclear when the Office intends to produce these records. The Office must clarify this matter. Conclusion Accordingly, the Office is to provide Ms. Bach with a response to the request, provided in a manner consistent with this order, 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