Patrick D. McPhee v. Division of Occupational Licensure (SPR 20222953)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 4, 2023 SPR22/2953 Jessica L. Ellis, Esq. Assistant General Counsel for Public Affairs Division of Occupational Licensure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Attorney Ellis: On December 27, 2022, this Office received your petition on behalf of the Division of Occupational Licensure (Division) seeking 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 Division furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On December 12, 2022, in three separate public records requests, Patrick McPhee requested: [1] …any/all information, on call detail records on [an identified number], this includes place, returned and text, for the past two months[;] [2] …any/all information, on emails for Board of Public Accountancy this includes sent and received, for the past two months[;] [a] (Line mails from Outlook, showing date/time, subject, please remove for privacy the public person sent and received from)[;] [3] …any/all information, on Commonwealth cell phone for [an identified individual] on call detail records, this includes place, returned and text, for the past two months[;] [4] …any/all information under the Division of Occupational Licensure for [an identified company][;] [5] …any/all employees licenses and information under the Division of Occupational Licensure working for [an identified company][;] [6] any/all information, on call detail records on [an identified number], this includes place, returned and text, for the past two months[;] [7] …any/all information, on emails for [an identified individual] this includes sent and received, for the past two months[;] [a] (Line mails from Outlook, showing date/time, subject, please remove for privacy the public person sent and received from) [8] …any/all information, on Commonwealth cell phone for [an identified 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

Jessica L. Ellis, Esq. SPR22/2953 Page 2 January 4, 2023 individual] on call detail records, this includes place, returned and text, for the past two months. 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). It is my determination that this request was not made for a commercial purpose. 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

Jessica L. Ellis, Esq. SPR22/2953 Page 3 January 4, 2023 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 27th petition, the Division explains: [T]he Division conducted a search and identified approximately 6,565 documents responsive to this request. After a preliminary review of those records, the Division provides the Requestor with a good faith estimate of $4,003.13. The basis of this estimate is 164.125 hours of staff time to review and redact all documents in accordance with law, estimating approximately 40 documents per hour, including the following: • Statutory Exemption (G. L. c. 4, § 7(26)(a)) – The documents requests contain or may contain information exempt from disclosure under G.L. c. 6, § 167, et al. • Privacy Exemption (G. L. c. 4, § 7(26)(c)) - The documents requested contain or may contain personal identifying information, such as non-public mailing addresses, social security numbers, email addresses, phone numbers, dates of birth, and other information that is exempt from disclosure pursuant to the privacy exemption. • Investigatory Materials Exemption (G. L. c. 4, § 7(26)(f)) – The documents requested may include complainant names and materials related to cases pending before the Board that will require redaction under this exemption. . . . • Attorney-Client Privilege - Some of the records that may be responsive to the request are communications between Division staff and attorneys or amongst attorneys. These communications are subject to attorney-client privilege and are exempt from disclosure under the Public Records Law to the extent they consist of communications about legal matters between counsel and client, or between attorneys representing clients with a common interest. These communications were made in confidence for the purpose of obtaining or providing confidential legal advice, did not include any person who was not an employee or attorney within the Division, and were not otherwise disclosed to a third party. Accordingly, the privilege has not been waived. The Division further states: The Division 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 requestor. Segregation and redaction of records often involves the application of multiple exemptions to the public records law to a single record. Some information is simultaneously protected by more than one exemption or different exemptions depending on context or the time of disclosure. The fee

Jessica L. Ellis, Esq. SPR22/2953 Page 4 January 4, 2023 estimates provided are for the search, segregation, and redaction process as whole, and in the view of undersigned, cannot be split up by exemption. Since some of the segregation and redaction process is required by law, the Division is entitled to charge a fee for that portion and does not view a petition for such exemptions as a necessary prerequisite, but is included herein for completeness. 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 Division is permitted to charge for time spent segregating and redacting the requested records. I encourage the parties to communicate further to enable the Division to provide records in an efficient and affordable manner. Please note Mr. McPhee 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: Patrick McPhee