Laura H. Ortiz v. Attorney General's Office (SPR 20230022)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 20, 2023 SPR23/0022 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 Previous appeal This request was the subject of a previous appeal. See SPR22/2691 Determination of the Supervisor of Records (December 7, 2022). The AGO responded on December 21, 2022. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR23/0022, 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). 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. SPR23/0022 Page 2 January 20, 2023 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). The AGO’s December 21st response In its December 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

Lorraine A.G. Tarrow, Esq. SPR23/0022 Page 3 January 20, 2023 categories as necessary. One (1) minute per item The AGO asserted that the “… November 4 request is a modification of the prior two (2) requests. We reiterate that we have already spent eight and one-half (8.5) hours responding to the prior two (2) requests for various iterations of the same records. The Supervisor of Public Records has opined that a requestor may not divide a request into multiple parts in order to circumvent the fees allowed by the Public Records Law. See SPR 19/1371 (July 25, 2019) …” In her appeal, Ms. Ortiz asserts, “[t]heir RAO instead illegally continues to charge us for 8.5 hours related to two prior abandoned records requests from 4/22/22 …” In light of Ms. Ortiz’s appeal and the AGO’s response, I encourage Ms. Ortiz and the AGO to communicate in order to facilitate producing records efficiently and affordably. Ms. Ortiz may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The AGO must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). The AGO is advised that it may not assess a fee for search time already expended on prior requests. If issues remain after the parties communicate, Ms. Ortiz may file an appeal. Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz