Jared S. Burke v. Department of Public Utilities (SPR 20222241)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 7, 2022 SPR22/2241 Patrick M. Houghton, Esq. Counsel I Department of Public Utilities Legal Division One South Station, 5th Floor Boston, MA 02110 Dear Attorney Houghton: On October 3, 2022, this Office received your petition on behalf of the Department of Public Utilities (Department) seeking an extension of time to produce records and 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. G. L. c. 66, § 10(d)(iv). On September 19, 2022, Jared Burke, Esq., of The Law Offices of Timothy M. Burke, requested: [1] Copies of any and all communications, correspondence, or other documents related to any and all fines issued to The Berkshire Gas Company and/or their parent company, Avangrid, by DPU from April of 2020 through present[;] [2] Copies of any and all communications, correspondence, or other documents which relate to or identify any and all violations of Massachusetts Laws and/or DPU regulations committed by The Berkshire Gas Company and/or their parent company, Avangrid, from April of 2020 through present[;] [3] To the extent not produced in the preceding requests, copies of any and all communications, correspondence, or other documents which relate to or identify any and all violations of rules relating to safety, the quality and reliability of service, and consumer protection committed by The Berkshire Gas Company and/or their parent company, Avangrid, from April of 2020 through present. Petition 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 M. Houghton, Esq. SPR22/2241 Page 2 October 7, 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). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must 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). Current Petition In its October 3rd petition, the Department explains: The Department conducted a preliminary search and collected approximately 2,000 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. The responsive records contain a high volume of Critical Energy Infrastructure Information related to gas facilities and pipeline networks located within the Commonwealth as well as personal contact information (home address, telephone numbers, personnel information, etc.), which are exempt from disclosure pursuant to G.L. c. 4, § 7, cl. 26(n), and (c) respectively. 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…. Pursuant to G.L. c. 66, § 10(c) and 950CMR 32.06(4), the Department respectfully submits this petition for a one-time extension of time for 20 business days to produce a response to the requester.

Patrick M. Houghton, Esq. SPR22/2241 Page 3 October 7, 2022 I find the Department has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the Department an extension of 20 business days to furnish copies of records responsive to Attorney Burke’s request. See G. L. c. 66, § 10(c). 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). 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

Patrick M. Houghton, Esq. SPR22/2241 Page 4 October 7, 2022 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 October 3rd petition, as noted above, the Department explains: The responsive records contain a high volume of Critical Energy Infrastructure Information related to gas facilities and pipeline networks located within the Commonwealth as well as personal contact information (home address, telephone numbers, personnel information, etc.), which are exempt from disclosure pursuant to G.L. c. 4, § 7, cl. 26(n), and (c) respectively. 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…. [T]he Department 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 requester. Segregation and redaction of records often involves the application of multiple exemptions to the public records law to a single document, which may include several attachments. Some information is simultaneously protected by more than one exemption or different exemptions depending on context or the time of disclosure. The fee estimates provided are for the segregation and redaction process as a whole, and in the view of the Department, cannot be split up by exemption. Given that there are approximately 2,000 items that the Department must review and redact, this will impose an onerous burden on the Department, which will have to devote limited resources to review and redact these records. Given the volume of information requiring review, the Department’s good faith estimate is $2,400. The Department estimates it will expend 100 hours to compile the records. The Department estimates, conservatively and in good faith based on past experience, that we will expend an average of three minutes to review each email and to perform any necessary redactions of the records. Accordingly, the good faith estimate of $2,400 is derived as follows: 6,000 minutes, or 100 hours, for reviewing and redacting the records, minus the first four hours, equals 96 hours at a rate of $25/hour, which represents the lowest hourly rate of a person capable of compiling, segregating, and redacting these records. This estimate represents an actual and good faith representation. The cost is necessary, reasonable and is not designed to limit, deter, or prevent access to requested public records.

Patrick M. Houghton, Esq. SPR22/2241 Page 5 October 7, 2022 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). Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the Department is permitted an extension of 20 business days to furnish copies of records responsive to Attorney Burke’s request. Further, the Department is permitted to charge for time spent segregating and redacting the requested records. 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). Sincerely, Manza Arthur Supervisor of Records cc: Jared Burke, Esq.