Commonwealth Transparency v. Division of Administrative Law Appeals (SPR 20220308)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 11, 2022 SPR22/0308 Edward B. McGrath, Esq. Chief Administrative Magistrate Division of Administrative Law Appeals 1 Congress Street, 11th Floor Boston, MA 02114 Dear Attorney McGrath: I have received the petition of Commonwealth Transparency appealing the response of the Division of Administrative Law Appeals (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 7, 2021, Commonwealth Transparency requested, “any and all electronic mail and/or text messages between the BSEA (inclusive of all BSEA employees, administration, and contractors) and anyone at [a certain] email domain [for the time period of January 1, 2019 to October 7, 2021].” Previous Appeal The records sought by Commonwealth Transparency were the subject of a previous appeal. See SPR21/2784 Supervisor of Records Determination (November 8, 2021). There, I ordered the Division to respond to Commonwealth Transparency’s request for records. The Division provided Commonwealth Transparency with an initial response on November 22, 2021 and a subsequent fee estimate on December 20, 2021. Unsatisfied with the Division’s response, Commonwealth Transparency petitioned this office and this appeal, SPR22/0308, was opened as a result. 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 agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Edward B. McGrath, Esq. SPR22/0308 Page 2 February 11, 2022 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. Fee Estimates 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. 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). 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Division’s November 22nd Response and December 20th Fee Estimate On November 22, 2021, the Division stated: We are actively working on this request but due to [the] fact that there could be more than 11,000 responsive records…and our responsibility to review the documents in-house to remove students’ and parents’ personally identifying information as required by M.G.L. c. 71B § 2A(b)…it is a time-consuming task. On December 20, 2021, the Division stated:

Edward B. McGrath, Esq. SPR22/0308 Page 3 February 11, 2022 [W]e completed redacting the personally identifying information of the students and parents contained in the emails in Batch 1 [of responsive documents] protected by M.G.L. c. 71B § 2A(b)…There is no charge for [Batch 1]. It took a total of 21 hours to finish redacting Batch 1 and there are 14 more batches. Therefore, we believe it will take approximately 294 hours to redact the remainder of the emails responsive to your request. We will charge $25.00 an hour to perform the task for a total cost of $7,350.00. Current Appeal In their current appeal, Commonwealth Transparency stated, “[the Division] provided their first response…31 business days after the request was made and as a matter of law, precludes the [Division] from charging for any responsive records….The [Division] indicates a fee will be assessed for the responsive records despite failing the legal requirements of providing the initial response and estimate within 10 business days.” G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Given that Commonwealth Transparency requested the records on October 7, 2021 and the Division provided Commonwealth Transparency with its initial response on November 22, 2021, the Division must demonstrate that it provided a response in compliance with G. L. c. 66, § 10(b) in order to assess fees for responsive records. This office encourages Commonwealth Transparency and the Division to continue to communicate 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). Conclusion Accordingly, the Division is ordered to provide a response to the requestor, in a manner consistent with this order, the Public Records Law and its Regulations within 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. The Commonwealth Transparency may appeal the substantive nature of the Division’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Edward B. McGrath, Esq. SPR22/0308 Page 4 February 11, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Commonwealth Transparency