Itai Vardi v. Department of Public Utilities - Legal Division (SPR 20222545)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 16, 2022 SPR22/2545 Patrick M. Houghton, Esq. Counsel I Department of Public Utilities Legal Division One South Station, 5th Floor Boston, MA 02110 Dear Attorney Houghton: On November 8, 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(c); 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 October 25, 2022, Itai Vardi, of the Energy and Policy Institute, requested: [1] From 1.1.2022 to the date of processing of this request, any and all electronic communications (emails, texts, DMs on social media or any other messaging app used for work) to and from Director of Gas . . . AND which include any of all of the following 2 terms: 1) “future of gas”, 2) “20-80”. Please include all attachments as well as the entire threads in which responsive communications may be nestled within. [2] From 1.1.2022 to the date of processing of this request, any and all electronic communications (emails, texts, DMs on social media or any other messaging app used for work) to and from Assistant Director, Division of Gas . . . AND which include any and all of the following 2 terms: 1) “future of gas”, 2) “20-80”. Please include all attachments as well as the entire threads in which responsive communications may be nestled within. 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. SPR22/2545 Page 2 November 16, 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). 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

Patrick M. Houghton, Esq. SPR22/2545 Page 3 November 16, 2022 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). In an email to a staff attorney in this office dated November 15, 2022, Mr. Vardi states: I’ve emailed and finally talked today on the phone with Mr. Patrick Houghton of the DPU (CC’d) on ways to limit my original request in a way that might reduce the original fee request by the DPU. Mr. Houghton is now looking into these proposals and running the numbers on a potentially revised fee. In light of this, can the Public Records Division please extend the time by which it will issue a determination on this petition? Mr. Houghton has verbally agreed as well on our call to an extension of time. Conclusion It is my understanding the Department and Mr. Vardi intend to communicate further in order to facilitate providing records more efficiently and affordably. G. L. c. 66, § 10(b)(vii). In light of these communications, it is unnecessary to opine on the Department’s petition at this time.

Patrick M. Houghton, Esq. SPR22/2545 Page 4 November 16, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Itai Vardi