Laura H. Ortiz v. Office of the Attorney General (SPR 20222783)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 19, 2022 SPR22/2783 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 12, 2022, Ms. Ortiz requested the numerous public records for the time period: April 20 2022 through October 13, 2022 that included names, words, phrases, records responsive for a particular time period. Previous appeal This request was the subject of a previous appeal. See SPR22/2444 Determination of the Supervisor of Records (November 10, 2022). The AGO responded on November 29, 2022. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR22/2783, 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. SPR22/2783 Page 2 December 19, 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 29th fee estimate In its November 29, 2002 fee estimate, the AGO provided a fee of $100.00 and stated “… that the labor required to review the eighty-three (83) records for responsiveness to this particular request and for information protected by law amounts to eight (8.0) hours. This estimate accounts for: four (4.0) hours already expended by staff to search for and categorize potentially responsive records along the parameters of your prior request for the same records and four (4.0) 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. However, 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 November 14 request is four (4.0) hours at the rate of $25.00 per hour, which amounts to $100.00.” In its November 29, 2022 response, the AGO advised that Ms. Ortiz now seeks a subset of the prior request as follows: 1) April 20, 2022-October 12, 2022 Terms: ‘the public records law does not require that an agency create a new record’ or ‘Lory is familiar with the numerous public records requests that our office has received from’ Results: 16 Items Hour(s) of Labor: 0.75 [Cost: $18.75] 2) Time Frame: 4/20/22-5/20/22 Terms: “Ortiz” Results: 67 Items Hour(s) of Labor: 3.25 [Cost: $81.25] (Cost in Brackets in the [AGO] original) The AGO opined that they “… cannot respond to the questions posed in Part A of your request. The Public Records Law, G.L. c. 66, § 10, provides for the identification, review, and disclosure of records that exist and are in the AGO’s custody. It does not require the creation of a record and consequently, does not contemplate the answering of questions or requests styled as interrogatories that involve the creation of a narrative or an arrangement of records in order to be responsive.”

Lorraine A.G. Tarrow, Esq. SPR22/2783 Page 3 December 19, 2022 The AGO further advised that the rate is $25.00 per hour. The AGO outlined the tasks involved as follows:  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[.] Based on the AGO’s response, it is unclear if the AGO is charging for search time for a prior request. 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 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