Colleen Boyle v. Department of Public Utilities (SPR 20221020)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 6, 2022 SPR22/1020 Patrick M. Houghton, Esq. Records Access Officer Department of Public Utilities Legal Division One South Station, 5th Floor Boston, MA 02110 Dear Attorney Houghton: On May 2, 2022, this office received your petition on behalf of the Department of Public Utilities (Department) requesting an extension of time to respond to the request as well as permission to charge for time spent segregating or redacting responsive records under G. L. c. 66, § 10 (d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor, Colleen Boyle. G. L. c. 66, § 10(d)(iv). In a letter dated April 18, 2022, Ms. Boyle requested: 1. Dig Safe Violation/Damage Reports in which the Excavator is listed as Feeney Brothers (or Feeney Brothers Utility Services) from January 1, 2018, to present; and 2. Any Notice of Probable Violation issued to Feeney Brothers (or Feeney Brothers Utility Services) from January 1, 2018, to present. 3. Any email correspondence to or from Matthew Cyr between March 1, 2022, and March 31, 2022, containing any of the following terms: • “Feeney Brothers” • “Feeney Bros” • “Operator Qualification” • “OQ Protocol 9 field inspection.” Petitions 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 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

Patrick Houghton, Esq. SPR22/1020 Page 2 May 6, 2022 has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (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). The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall 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). Extension of Time to Produce Responsive Records In its May 2nd petition, the Department states the following: On April 21, 2022, the Department shared email communications with Ms. Boyle in an attempt to narrow the scope of her request. Ms. Boyle and the Department were able to eliminate six responsive documents from the request. However as is explained below, the requested information is still voluminous, and the scope of the request could not be narrowed further. After eliminating the six documents mentioned above, the Department conducted a preliminary search and collected approximately 2,142 items. According to this preliminary assessment, which is not inclusive of all the records requested by the requester, the Department has determined that it will require an extensive amount of time to complete the request…Pursuant to G.L. c. 66, § 10(c) and 950 CMR 32.06(4) the Department respectfully submits this petition for a one-time extension of time to produce a response to the requester. I find in light of the need to collect and segregate the request, as well as the efforts already undertaken by the Department to provide responsive records, the Department has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). The Department is granted an extension of 20 business days. Please note the time may begin to run once the Department receives payment. G. L. c. 66, § 10(c).

Patrick Houghton, Esq. SPR22/1020 Page 3 May 6, 2022 Petition to Assess Fees 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 (Supervisor) under a petition under G. L. c. 66, § 10 (d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve an agency’s petition to allow the agency to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the agency to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). 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 (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).

Patrick Houghton, Esq. SPR22/1020 Page 4 May 6, 2022 Current Petition In its May 2nd petition, the Department states the following: Because the focus of the request concerns a business that is before the Department frequently, and the request covers a span of five years, the responsive documents include a high volume of material requiring multiple redactions including investigatory materials, critical energy infrastructure information in the form of internal layouts, structural elements, and blueprints for the Commonwealth’s pipeline system… Additionally, some of the requested information requires further redactions due to the presence of certain information relating to personal information of Department employees. All information falling within these categories is exempt from disclosure pursuant to G.L. c. 4, §7, cl. 26(f), (n), and (o) respectively. Furthermore, certain of the requested email communications are protected by attorney-client privilege because they are confidential communications between legal counsel and the client (e.g., the Department) undertaken for the purpose of obtaining legal advice or assistance on matters of law. Accordingly, the information must be segregated and redacted to secure the safety of persons and public places before the records are produced to the requester… The Department estimates, conservatively and in good faith based on past experience, that we will expend an average of three minutes to review each item and to perform any necessary redactions of the records. Accordingly, the good faith estimate of $2,575 is derived as follows: 6,426 minutes, or 107 hours, for reviewing and redacting the records, minus the first four hours, equals 103 hours at a rate of $25/hour, which represents the lowest hourly rate of a person capable of compiling, segregating, and redacting these records. I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). Conclusion In light of the Department’s petition, I find the Department has established good cause for a time extension of 20 business days as described above. Additionally, to the extent the responsive records contain the exempt information described above, the Department may assess a fee for segregation and redaction. I encourage the parties to communicate further to enable the Department to provide records in an efficient and affordable manner. 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, § 10(d)(iv)(4), l0A(c).

Patrick Houghton, Esq. SPR22/1020 Page 5 May 6, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Colleen Boyle