Itai Vardi v. Department of Public Utilities (SPR 20222876)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 21, 2022 SPR22/2876 Patrick M. Houghton, Esq. Counsel I Department of Public Utilities Legal Division One South Station, 5th Floor Boston, MA 02110 Dear Attorney Houghton: On December 15, 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 [a named individual] 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 [a named individual] 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. In its December 15th petition, the Department asserts: [B]ecause the Department and Mr. Vardi agreed to work towards a less voluminous production than the initial request, your office concluded in its November 16, 2022 Determination SPR22/2545 that “it was unnecessary to opine 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. SPR22/2876 Page 2 December 21, 2022 on the Department’s petition at this time.” The Department has since communicated with Mr. Vardi and implemented various alterations to the initial request, including the removal of filings for docket D.P.U. 20-80, standard news related emails, and certain attorney-client privileged information regarding draft documents for D.P.U. 20-80 and future of gas. In correspondence between the Department and this office, the Department confirmed the final modification to Mr. Vardi’s request was made on December 1, 2022. 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 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 December 15th petition, the Department seeks “an extension of 20 business days to provide the responsive records to the requester.” The Department states, “[g]iven that there are 513 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.”

Patrick M. Houghton, Esq. SPR22/2876 Page 3 December 21, 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 Mr. Vardi’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. SPR22/2876 Page 4 December 21, 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 December 15th petition, the Department asserts: Because the focus of the request concerns the business operations of local gas distribution companies within the commonwealth, the responsive records include a high volume of material requiring redaction of critical energy infrastructure information in the form of internal layouts, structural elements, and blueprints for the Commonwealth’s pipeline system. All information falling within this category is exempt from disclosure pursuant to G.L. c. 4, §7, cl. 26(n). Furthermore, certain of the requested email communications are still protected by attorney-client privilege because they are confidential communications between legal counsel and the client (i.e., the Department) undertaken for the purpose of obtaining legal advice or assistance on matters of law. 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. I find the Department 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 Mr. Vardi’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 Mr. Vardi 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),

Patrick M. Houghton, Esq. SPR22/2876 Page 5 December 21, 2022 l0A(c). Sincerely, Manza Arthur Supervisor of Records cc: Itai Vardi