Commonwealth Transparency v. Division of Administrative Law Appeals (SPR 20220378)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 24, 2022 SPR22/0378 Edward McGrath, Esq. Chief Administrative Magistrate Division of Administrative Law Appeals 1 Congress Street, 11th Floor Boston, MA 02114 Dear Chief Magistrate 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 Appeals The records sought by Commonwealth Transparency were the subject of two previous appeals. See SPR22/0308 Supervisor of Records Determination (February 11, 2022); SPR21/2784 Supervisor of Records Determination (November 8, 2021). In SPR22/0308, I ordered the Division to demonstrate that it provided a response in compliance with G.L. c. 66, § 10(b) in order for it to assess fees for responsive records. The Division provided a response on February 15, 2022. Unsatisfied with the Division’s February 15th response, Commonwealth Transparency petitioned this office and this appeal, SPR22/0378, was opened as a result. 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 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 McGrath, Esq. SPR22/0378 Page 2 February 24, 2022 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 October 25th and February 15th Responses In its October 25, 2021 email to the Public Records Division and Commonwealth Transparency, the Division stated: [The Division] received a copy of the email to [the Public Records Division] this morning. [The Division] did a search for the email dated October 7, 2021 and found it in [its] spam folder. [The Division] will prepare a response to the request as quickly as [it] can. As the request concerns email for staff since January 1, 2019, [the Division] expects it will take…at least 2 weeks to complete [its] response. In its February 15, 2022 response, the Division stated: While the Requestor states that the initial public records request was served on the [Division] on [October 7, 2021], the [Division] did not receive it at that time. The request was placed in the [Division’s] spam folder … The [Division] became aware of the [initial] request on October 25, 2021, when the Requestor filed its first appeal (SPR21/2784). The [Division] immediately responded to your office copying the Requestor and stating that he had found the request and it would take at least two weeks to respond because of the size of the request. On November 8, 2021, [the Supervisor of Records] issued a determination…ruling that the [Division] had to provide a written response to the Requestor within ten business days. On November 22, 2021, the [Division] complied with [the Supervisor’s] determination and provided a written response

Edward McGrath, Esq. SPR22/0378 Page 3 February 24, 2022 noting that there were about 11,000 emails that needed to be reviewed [and redacted pursuant to] G.L. c. 71B §2A(b) … On December 6, 2021, the [Division] updated its response…[and] asked the Requestor to consider modifying its request…The Requestor did not respond … On December 20, 2021, the [Division] provided its supplemental response[, fee estimate,] and a batch of redacted emails … [T]he Legislature [has] made it clear that the ten-day deadline to respond to a public records request begins to run when the [Division] receives the request…As the Supreme Judicial Court has held: “’Receive’ means ‘to take possession or delivery of…’ Rahim v. District Attorney of Suffolk District, 486 Mass. 544, 547 (2020)…The request was not received by the [Division] until October 25, 2021. See Fernandes v. Craine, 534 Fed.Appx. 274, 275 (4th Cir. Fed. R. App. Pro. 32.1 Dec.) (District Court’s denial of motion to extend time vacated, as lawyer did not learn of District Court Judgment because email notifying him of judgment went to his junk file). Current Appeal In its current appeal, Commonwealth Transparency stated: [The Division’s] first response was on November 22, 2021 (31 business days after the request was received)…In this initial response the undersigned RAO states “This responds to your public records request received by this Office on October 7, 2021.” [The Division] conclude[d] the approximation of “more than 11,000 responsive records” and “We currently expect to produce responsive records that have been completed within two weeks and will provide a firm date for completion of the full request at that time. We do not expect to charge any fees to respond to this request at this time and will let you know if our expectation changes.” At no time from October 7, 2021 through today, did the RAO request an extension. At no time until December 20, 2021 did the RAO estimate any fees, conversely he indicated that there would be no fees. The last “FIRM” date of completion proffered by the RAO in his December 20, 2021 letter is for this Thursday, February 17, 2022.

Edward McGrath, Esq. SPR22/0378 Page 4 February 24, 2022 Under the Public Records Law and its Regulations, all requests for public records must be met with a response within ten business days of receipt of the request. G.L. c. 66, § l0(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § 10(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. If there are any fees associated with a response a written, itemized, good faith estimate of any fees that may be charged must be provided within ten business days. G. L. c. 66, § l0(b)(viii); see also 950 C.M.R. 32.07(2)(a)-(l). A records custodian may not charge a fee unless the custodian provides a written response in compliance with G. L. c. 66, § 10(b) within ten business days following receipt of the request. See G. L. c. 66, § 10(e). Despite the Division’s October 25, 2021 response, I find it is unclear whether the Division complied with G. L. c. 66, § 10(e). Specifically, it must demonstrate whether it provided a timely response to Commonwealth Transparency’s request that is compliant with the requirements under G.L. c. 66, § 10(b). See G. L. c. 66, § 10(b)(i)-(ix) (outlining the requirements of a records custodian's written response to a requestor). Conclusion Accordingly, the Division is ordered to provide Commonwealth Transparency with a response in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of the 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: Commonwealth Transparency