Stevan Johnson v. Department of Public Utilities - Legal Division (SPR 20220702)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 5, 2022 SPR22/0702 Carline Lemoine Records Access Officer Department of Public Utilities One South Station Boston, MA 02110 Dear Ms. Lemoine: I have received the petition of Stevan Johnson appealing the response of the Department of Public Utilities (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 24, 2022, Mr. Johnson requested records relating to 2 particular appeals. The Department provided an initial fee estimate on February 2, 2022. Previous Petition and Fee Estimate The records requested by Mr. Johnson were the subject of a previous fee petition and subsequent reconsideration. See SPR22/0249 Supervisor of Records Reconsideration (February 23, 2022); SPR22/0249 Supervisor of Records Determination (February 9, 2022). In my February 23rd reconsideration, I declined to opine because the Department was not seeking permission to segregate or redact the responsive records and only sought to charge for compiling the records. The Department sent a revised fee estimate on February 25, 2022 and again on March 23, 2022. Claiming that he did not receive responsive records, Mr. Johnson petitioned this office and this appeal, SPR22/0702, was opened as a result. Fee Estimates - Agencies 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

Carline Lemoine SPR22/0702 Page 2 April 5, 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 Department’s February 2nd, February 25th, and March 23rd Responses In its original February 2, 2022 fee estimate, the Department stated: The 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 will have to devote limited resources to segregate and convert these records. Given the volume of information requiring segregation, the Department’s good-faith estimate is $1,900. The Department estimates it will expend 80 hours to compile the records. The Department estimates, conservatively and in good faith based on past experience, that 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. In its February 25, 2022 response, the Department stated: …the Department is waiving its right to recover part of the costs of compiling this information because the responsive record is likely to benefit the public interest and will not result in commercial gain. Consequently, the Department is waiving 44 hours, which is slightly over half of the initial 84 hours of labor …

Carline Lemoine SPR22/0702 Page 3 April 5, 2022 Further, after applying the partial waiver, the Department has determined that a charge of $900 is necessary to process production, representing the Department’s amended reasonable reproduction costs associated with your request. The CD contains the equivalent of approximately six boxes of files in tag image file format (“TIFF”) relating to [the particular appeals for which Mr. Johnson seeks records]. The Department estimates, conservatively and in good faith based on past experience, that we will expend an average of 14 hours per box to convert the TIFF files to portable document format (“PDF”) files. Accordingly, the good-faith estimate of $900 is derived as follows: 40 hours (84 hours total less the 44 hours waived) for compiling and converting the records to PDF files, excluding the first 4 hours, equals 36 hours at a rate of $25/hours, which represents the lowest hourly rate of a person capable of compiling, segregating and redacting these records. On March 23, 2022, claiming not to have received a response from Mr. Johnson, the Department reiterated its intention to waive a portion of its fee estimate and would produce records upon payment of $900. In light of the above, I find the Department’s fee estimate unclear. Specifically, it is unclear how the Department estimates that it requires 14 hours per box to convert the responsive records to a PDF format. The Department must clarify in further detail the tasks involved in converting the responsive records to a PDF format and how those tasks will total 14 hours per box. This Division encourages Mr. Johnson and the Department 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 Department is ordered to provide Mr. Johnson 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.

Carline Lemoine SPR22/0702 Page 4 April 5, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Stevan Johnson