Gang Xu v. Department of Telecommunications and Cable (SPR 20221136)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 24, 2022 SPR22/1136 Sean Carroll, Esq. General Counsel Records Access Officer Department of Telecommunications and Cable 1000 Washington Street, Suite 820 Boston, MA 02118-6500 Dear Attorney Carroll: On May 16, 2022, this office received your petition on behalf of the Department of Telecommunications and Cable (Department) seeking permission to charge for time spent segregating or redacting responsive records. 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, Dr. Gang Xu. G. L. c. 66, § 10(d)(iv). In a letter dated May 2, 2022, Dr. Xu requested nine (9) categories of records concerning Comcast’s cable and video services “[f]or the years 2014, 2019, 2020, 2021, and 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. 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

Sean Carroll, Esq. SPR22/1136 Page 2 May 24, 2022 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). Current Petition In its May 16th petition, the Department states, “[p]ursuant to G.L. c. 66, § 10 and 950 C.M.R. § 32.06, the Department of Telecommunications and Cable (‘Department’) requests approval to assess a fee of up to $5,963.75 for costs associated with responding to a public records request from Dr. Gang Xu, PhD (‘Requestor’). Said request was submitted on May 2, 2022 and modified on May 4, 2022, and new requests were added on May 9, 2022… [T]he Department has conducted an initial search and identified 1,931 records that may be responsive to this request.”

Sean Carroll, Esq. SPR22/1136 Page 3 May 24, 2022 The Department posits that it “…has an obligation to ensure that proper procedures are maintained to prevent the dissemination of information which is protected from disclosure by law. This requires careful review and segregation of records before they are produced to a requestor…The records requested contain or may contain personal identifying information, such as non-public mailing addresses, social security numbers, account numbers, email addresses, phone numbers, dates of birth, and other information that is exempt from disclosure pursuant to the privacy exemption. Considering the Department’s obligation and the voluminous nature of these requests, this fee estimate represents an actual and good faith representation. The cost is necessary and reasonable and is not designed to limit, deter, or prevent access to requested public 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 Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the Department is permitted to charge for time spent segregating and redacting the requested records. To the extent possible, the Department must provide responsive records on a rolling basis. Further, this office encourages Dr. Xu and the Department continue to communicate to facilitate providing records more efficiently and affordably. Please note, Dr. Xu 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: Gang Xu, PhD.