Laura H. Ortiz v. Office of the Attorney General (SPR 20221404)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 1, 2022 SPR22/1404 Lorraine A. G. Tarrow, Esq. Assistant Attorney General Records Access Officer Attorney General’s Office One Ashburton Place Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Laura Ortiz appealing the response of the Attorney General’s Office (Office/AGO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 22, 2022, Ms. Ortiz requested: [1] Any Emails & Attachments for AGO email address: ...@mass.gov to/from/cc/bcc: @lw.com; @nsba.org; @nea.org; @thompsonhorton.com; @ptd.net; @buschlawgroup.com; @cyberbullying.org; @doj.ca.gov; @ag.state.mn.us[.] Timeline: 2/24/21-3/2/21 [2] Any Emails & Attachments for AGO email server address: @mass.gov to/from/cc/bcc: @lw.com; @nsba.org; @nea.org; @thompsonhorton.com ; @ptd.net; @buschlawgroup.com; @cyberbullying.org; @doj.ca.gov; @ag.state.mn.us[.] Timeline: 2/24/21-3/2/21 . . . Previous appeal This request was the subject of a previous appeal. See SPR22/1154 Determination of the Supervisor of Records (June 1, 2022). In my June 1st determination, I noted that the Office intended on providing Ms. Ortiz with a supplemental response regarding Item 2 of her request. The Office provided the response on June 15, 2022. Unsatisfied with the Office’s response, Ms. Ortiz petitioned this office and this appeal, SPR22/1404, 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 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

Lorraine A. G. Tarrow, Esq. SPR22/1404 Page 2 July 1, 2022 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). 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. 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. Current appeal Item 1 In her appeal petition, Ms. Ortiz states: [T]he AGO responded again in its Supplemental Response to SPR 22/1154 with continued: 1) shielding all of Part 1 records in entirety stating none exits, we continue to challenge this . . . Ms. Ortiz’s concern was addressed in my June 1st determination. In the previous determination, I found as follows: Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Where the Office confirms it does not possess any documents responsive to this request, I find that Ms. Ortiz’s appeal related to this portion of the request is resolved. In light of the above, where the Office has confirmed it does not possess responsive records, I decline to reverse my initial finding in the June 1st determination.

Lorraine A. G. Tarrow, Esq. SPR22/1404 Page 3 July 1, 2022 Fee estimates – agencies 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 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 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). The Office’s June 15th fee estimate In its June 15, 2022 fee estimate, the Office explains that it “. . . report[s] the number of records that our search terms reveal to be responsive as ‘items.’ This means that each e-mail and each attachment is separately counted as an item regardless of how many pages it consists of. In our experience, we have found that while most e-mails range between one (1) to two (2) pages in length, attachments can range from one (1) page to one hundred (100) pages or more and account for approximately one third of the total number of items. These are only estimates, as the nature and subject matter of the responsive records may skew the numbers differently.” The Office clarifies that “. . . for communications between the AGO and those individuals or entities with whom we share a common interest – an in-depth review of the responsive records for privileged attorney-client communications or attorney work product is necessary to search for and redact or withhold the protected information. Further, the public records law permits us to charge a fee for the segregation of such common law privileged materials or other segregation required by law.” The Office posits that its “. . . fee estimate is based on a total of three (3) minutes per ‘item’ for AGO staff to perform the following tasks:” • Item-by-item visual scan to confirm responsiveness; page-by-page visual scan to determine the categories into which the item falls, e.g., Disclose in Entirety,

Lorraine A. G. Tarrow, Esq. SPR22/1404 Page 4 July 1, 2022 Withhold in Entirety, Redact, Needs Further Review. One (1) minute per item • Determine privilege(s)/exemption(s) that form the basis of the withholding and/or redaction for each item/page; propose redactions for further review; provide initial analysis of those items needing further review in their entirety. One (1) minute per item • Final determination of privilege(s)/exemption(s) that apply to withhold and/or redact each item/page; accept or edit proposed redactions; final analysis of those items needing review in their entirety; redistribute in categories as necessary. One (1) minute per item[.] The Office estimates, “. . . that the labor required to review and segregate the 1,530 items/records responsive to Part [2] of your request amounts to seventy-seven (77.0) hours. This estimate accounts for: one (1.0) hour already expended by staff to search for and identify responsive records; and seventy-six (76.0) hours for qualified staff to review the records for responsiveness and, as necessary, segregate and redact the records for certain information protected by law, all at the rate of $25.00 per hour. Less the four (4.0) free hours of labor prescribed by G.L. c. 66, § 10(d)(ii)(B), the total amount of chargeable labor to respond to this request is seventy-three (73.0) hours at the rate of $25.00 per hour, which amounts to $1,825.00.” Based on the Office’s response, I find it has met its burden to explain how the indicated amount of time is necessary to search, segregate, and/or redact responsive records. In her appeal petition, Ms. Ortiz states: We made clear to the AGO that we requested that the AGO split . . . these records up into reasonable batches . . . 4/27/22 clarified what we meant was for it to be broken individually into batches for least burdensome to make it affordable: . . . a) @lw.com; Timeline: 2/24/21 then 2/25/21, 2/26/21, 2/27/21, 2/28/21, 3/1/21 then 3/2/21 ** b) @nsba.org; Timeline: 2/24/21 then 2/25/21, 2/26/21, 2/27/21, 2/28/21, 3/1/21 then 3/2/21 ** c) @nea.org; Timeline: 2/24/21 then 2/25/21, 2/26/21, 2/27/21, 2/28/21, 3/1/21 then 3/2/21 ** . . . Ms. Ortiz is reminded that a requestor may not divide a request into multiple parts in order to circumvent the fees allowed by the Public Records Law. The Office and Ms. Ortiz are encouraged to communicate further to determine whether any responsive records may be provided 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).

Lorraine A. G. Tarrow, Esq. SPR22/1404 Page 5 July 1, 2022 Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Laura Ortiz