Vanessa Doe v. Office of the Secretary of the Commonwealth - Administrative Services Division (SPR 20222135)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 23, 2022 SPR22/2135 Debra O’Malley Elections Division Office of the Secretary of the Commonwealth One Ashburton Place, Room 1705 Boston, MA 02108 Dear Ms. O’Malley: I have received your petition on behalf of the Office of the Secretary of the Commonwealth, Elections Division (Division) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, the Division furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On September 12, 2022, Vanessa Doe requested “all of [a named individual’s] ... emails from 2018 to present.” Petition to Assess Fees – Agencies 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

Debra O’Malley SPR22/2135 Page 2 September 23, 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 – 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 Petition In its September 16, 2022 petition, the Division estimates “that there are at least 97,608 emails potentially responsive to this request” and “seeks the Supervisor of Records’ permission to charge the requester for time spent segregating and redacting records that are responsive to the request.” In support of its petition, the Division provides the following information: [The individual] currently serves as Legal Counsel for the Elections Division and has previously served as General Counsel to the Secretary of the Commonwealth’s office during the relevant time period, [the Division] believe[s] that many of these responsive records are likely to contain sensitive materials, such as attorney-client privileged communications. Further, as [the individual] serves as Director of the Elections Division, many records may also contain information that may need to be redacted or withheld under Exemption (n), as they contain information the disclosure of which could jeopardize cybersecurity. In addition, the responsive records likely contain material that is exempt from

Debra O’Malley SPR22/2135 Page 3 September 23, 2022 disclosure under Exemption (c), such as medical and personnel information, as well as information the disclosure of which may constitute an unwarranted invasion of personal privacy. In light of the Division’s petition, I find the Division 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). To the extent the responsive records contain the exempt information as described above, the Division may assess a fee for the segregation and redaction of such exempt material. Conclusion Accordingly, I find the Division may assess a fee for segregation and redaction as discussed above. Please note, Vanessa Doe 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(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Vanessa Doe