Gang Xu v. Department of Telecommunications and Cable (SPR 20221906)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 29, 2022 SPR22/1906 Sean Carroll, Esq. General Counsel Department of Telecommunications and Cable 1000 Washington Street, Suite 600 Boston, MA 02118 Dear Attorney Carroll: I have received the petition of Dr. Gang Xu appealing the response of the Department of Telecommunications and Cable (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On 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.” Previous Petition This request was the subject of a previous petition from the Department. See SPR22/1136 Determination of the Supervisor of Records (May 24, 2022). In my May 24th determination, I found that the Department is permitted to charge for time spent segregating and redacting the requested records. Concurrent with its petition to this office, the Department provided Dr. Xu with a fee estimate on May 16, 2022. Unsatisfied with the Department’s response, and objecting to the fees, Dr. Xu appealed, and this case 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 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. 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. SPR22/1906 Page 2 August 29, 2022 Att’y 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. 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 (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 Appeal In his appeal petition, Dr. Xu contends that “the fee should be denied” and further argues that “in any case, the fee should never be an excuse for denying the access to public records.” G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. G. L. c. 66, § 10(d)(v).

Sean Carroll, Esq. SPR22/1906 Page 3 August 29, 2022 Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). In his appeal petition, Dr. Xu also raises numerous issues regarding the business practices and activities of telecommunication companies, and procedures within the Department. Given that such issues do not fall within the authority of this office, I am unable to address such issues in this determination. The Department’s May 16th Fee Estimate In its May 16, 2022 response, the Department provides the following information: Pursuant to G.L. c. 66, § 10 and 950 C.M.R. § 32.07(2), the Department will charge a reasonable fee to cover the costs of complying with [the] public records requests. This fee will not exceed the actual costs of reproducing responsive records. The Department estimates that the fee will amount to $5,963.75, which will cover the estimated 238.55 hours that it will take to search for, compile, review, and reproduce the requested records at the permitted rate of $25 per hour. The Department also provides “the below table for an itemized breakdown of this fee:” Complaint Estimated Case Estimated Time Per Total Estimated Year Records Record Time 2014 303 .25 (15 minutes) 75.75 hours 2019-2022 1,628 .1 (6 minutes) 162.8 hours 238.55 total hours Estimated Fee at $25/hour: $5,963.75 The Department further notes that its fee estimate “does not include the first four hours of work.” Additionally, in a phone conversation with this office on August 18, 2022, the Department further explained that each “complaint case record” described in its fee estimate varies in length from 5 to 50 pages, and consists of documentation of the entire complaint process, including the initial complaint, all correspondence between the Department, complainant and service provider, and documentation of the final resolution. In its May 16th fee estimate, the Department also notes that it “estimate[s] a longer time for the requested 2014 records because these records were created prior to [the Department’s] migration to [its] current complaint database.” Please be advised that the Department cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that

Sean Carroll, Esq. SPR22/1906 Page 4 August 29, 2022 allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Based on the information provided by the Department, it is unclear why it requires the amounts of time described above to search for, compile, review, and reproduce the requested records. The Department must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). In its response, the Department also expresses its willingness to work with Dr. Xu to narrow the scope of the request. This office encourages Dr. Xu and the Department to communicate directly in order 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 the records sought more efficiently and affordably). Conclusion Accordingly, the Department is ordered to provide Dr. Xu with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Sincerely, Manza Arthur Supervisor of Records cc: Dr. Gang Xu