Stevan Johnson v. Department of Public Utilities (SPR 20220249)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 9, 2022 SPR22/0249 Carline L. Lemoine Records Access Officer Department of Public Utilities, Legal Division One South Station, 5th Floor Boston, MA 02110 Dear Ms. Lemoine: I have received your petition on behalf of the Department of Public Utilities (Department) seeking an extension of time to produce records as well as 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, the Department furnished a copy of their petition to the requestor. Id. On January 24, 2022, Stevan Johnson requested “…a copy of all records in the possession, custody, and control of the Department relating to: (a) the Appeal [D.P.U. 88-203] filed by [an identified individual] with the Department pursuant to Section 1 of Chapter 280 of the Acts of 1934 (St. 1934, c. 280 § 1), after the Police Commissioner of the City of Boston (‘Police Commissioner’) denied his September 1988 application for a taxicab medallion; and (b) the Appeal the SJC reported the Boston Taxi Neighborhood Taxi Association (‘BTNA’) filed regarding the Department’s Order issued concerning to the Appeal [D.P.U. 88-203]…submitted to the DPU, pursuant to St. 1934, c. 280 § 1, ¶ 3, after the Police Commissioner denied [the identified individual’s] September 1988 application for a taxicab medallion.” 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: 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

Carline L. Lemoine SPR22/0249 Page 2 February 9, 2022 (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). 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). 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 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).

Carline L. Lemoine SPR22/0249 Page 3 February 9, 2022 Current Petition In its petition dated February 2, 2022, the Department “…respectfully requests the Supervisor grant its petition (1) for an extension of 20 business days to provide the responsive records to the requester, and (2) to assess a reasonable fee.” The Department states, “[t]he requested records are currently stored on a CD in Tag Image File Format which will require transferring to the Department’s database and converting to a digital format legible for production. Given that there are approximately 6 boxes of records on the CD which the Department must segregate, this will impose an onerous burden on the Department, which we will have to devote limited resources to segregate and convert these record.” The Department estimates it will expend 80 hours to compile the records. The Department notes, “….we will expend an average of 14 hours per box to segregate and convert each file. Accordingly, the good-faith estimate of $1,900 is derived as follows: 80 hours, for segregating and converting the records to portable document format files, excluding the first 4 hours equals 76 hours, at a rate of $25/hour, which represents the lowest hourly rate of a person capable of compiling, segregating and redacting these records.” Although the Department states it “…will expend an average of 14 hours per box to segregate and convert each file,” it has not provided information regarding what records it intends to produce and why such records are likely to contain exempt information. Conclusion I find the Department has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Please note, however, this does not preclude the Department from charging for segregation and redaction that is required by law. With respect to time, I find the Department has established good cause to permit an extension in light of the volume of responsive records. G. L. c. 66, § 10(c)(i)-(ii). I hereby grant the Department an extension of 20 business days to furnish copies of records responsive to Mr. Johnson’s request. See G. L. c. 66, § 10(c). To the extent possible, the Department must provide responsive records on a rolling basis. Please note, the requestor 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, § 10A(c).

Carline L. Lemoine SPR22/0249 Page 4 February 9, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Stevan Johnson