Laura H. Ortiz v. Attorney General's Office (SPR 20222691)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 7, 2022 SPR22/2691 Lorraine A.G. Tarrow, Esq. Records Access Officer Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Laura Ortiz appealing the response of the Office of the Attorney General (AGO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 21, 2022, Ms. Ortiz requested the following records: [1] Any Emails & Attachments for AGO email server address: @mass.gov from: @doj.ca.gov Timeline for [1]: 2/28/21 [2] Any Emails & Attachments for AGO email server address: @mass.gov from: @ag.state.mn.us Timeline for [2]: 2/28/21 The AGO responded on November 21, 2022, providing a fee estimate. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR22/2691, was opened as a result. Fee estimate - 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 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 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. SPR22/2691 Page 2 December 7, 2022 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). The AGO’s November 21st response In its November 21, 2022 response, the AGO provided a fee estimate of $162.60. In support of the fee estimate, the AGO advised, “…we estimate that the labor required to review the thirty-nine (39) records for responsiveness to this particular request and for information protected by law amounts to ten and one-half (10.5) hours. This estimate accounts for: eight and one-half (8.5) hours already expended by staff to search for and categorize potentially responsive records along the parameters of your multiple requests for the same records and two (2.0) hours for qualified staff to review the records found for responsiveness and, as necessary, redact protected information or otherwise segregate the records as outlined above, all at the rate of $25.00 per hour. The AGO further stated, “[p]ursuant to G.L. c. 66, § 10(d)(ii), an agency may charge 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, however, not to exceed $25.00 per hour. We do not anticipate that any AGO staff with a salary of less than $25.00 per hour can perform the abovementioned search, review, and segregation.” The AGO further advised, “… G.L. c. 66, § 10(d)(ii)(B) provides that no fees shall be charged for the first four (4.0) hours of labor required to respond to a public records request. Therefore, the total amount of chargeable labor to respond to your request is six and one-half (6.5) hours at the rate of $25.00 per hour, which amounts to $162.50.” The AGO outlined the time required for the request … 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, 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

Lorraine A.G. Tarrow, Esq. SPR22/2691 Page 3 December 7, 2022 Based on the AGO’s response, it is unclear how the AGO requires 8.5 hours to search for the responsive records. The AGO stated that “[t]his estimate accounts for: eight and one-half (8.5) hours already expended by staff to search for and categorize potentially responsive records along the parameters of your multiple requests for the same records. . .” As such, it is unclear if the AGO is assessing a fee for search time not related to this October 21st request. The AGO needs to clarify this matter. Conclusion Accordingly, the AGO is to provide Ms. Ortiz with a response to the request, provided in a manner consistent with the Public Records Law and its Regulations within ten (10) 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: Laura Ortiz