Joshua I. Katz v. Massachusetts Development Finance Agency (SPR 20230045)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 17, 2023 SPR23/0045 Ricks Frazier, Esq. Massachusetts Development Finance Agency 99 High Street Boston, MA 02110 Dear Attorney Frazier: I have received your petition on behalf of the Massachusetts Development Finance Agency (Agency) seeking an extension of time to produce records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, the Agency furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On December 20, 2022, Attorney Joshua I. Katz requested the following: [1] For the time period from April 1, 2022 to present, any and all correspondences, including but not limited to emails, text messages, letters, memoranda and records of calls, sent or received by [four identified individuals] to or from any of the following individuals: Governor Charles Baker, Lieutenant Governor Karyn Polito, any individuals now or formerly implanted by the Office of the Governor including but not limited to . . ., any individuals now or formerly employed by the Office of Mayor Mitchell including but not limited to . . ., any individuals now or formerly employed by the Department of Conservation and Recreation including but not limited to . . ., or any individuals now or formerly employed by or acting on behalf of Crowley Maritime including but not limited to [two named individuals]; [2] For the time period from April 1, 2022 to present, any and all correspondences, including but not limited to emails, text messages, letters, memoranda and records of calls, sent or received by [four named individuals] that discuss or refer to New Bedford State Pier, whether express or implied; [3] Any and all responses to the Request for Proposals issued by MassDevelopment for Use and Development of New Bedford State Pier dated on or around April 6, 2022; and 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

Ricks Frazier, Esq. SPR23/0045 Page 2 January 17, 2023 [4] Memorandum of Understanding between MassDevelopment and Department of Conservation and Recreation, together with any amendments thereto, and any other agreement between MassDevelopment and the Department of Conservation and Recreation relating to the New Bedford State Pier. Petitions 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) shall 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). Request for Additional Time to Produce Responsive Records In its January 9, 2023 petition, the Agency requests an extension of 20 business days, and provides the following information in support of its request: The magnitude of the request and the time necessary to complete the search and review responsive records will require additional time. Requested items #1 and #2 require an email, text, and record search spanning over nine months and involving

Ricks Frazier, Esq. SPR23/0045 Page 3 January 17, 2023 a minimum of twelve individuals, four Agency executives and a minimum of eight additional parties. Further, the Agency states: The Agency is requesting the extension to allow adequate time to search for, review, and identify the records relevant and responsive to these portions of the request. The Agency has begun the search process, but our preliminary review indicates that there will be hundreds of potentially responsive documents which will require review for responsiveness and to determine whether any redactions are warranted. The Agency has assigned additional staff to expedite the collection and review process, but unfortunately the process will require more time. On January 6, 2023, the Agency provided the requestors with electronic access to all documents responsive to items #3 and #4 of the request. (See attached email from Rick Frazier dated January 6, 2023). MassDevelopments will also continue to produce additional responsive records as soon as they become available. The Agency has attempted to reach an agreement with the requestors to allow for additional time within which to provide documentation responsive to items #1 and #2 on a rolling basis and as expeditiously as possible, however, the two sides have not been able to come to agreement. . . . The timing of this records request has created an additional challenge for the Agency, as all of the Agency personnel listed in the request, as well as the Agency staff members assisting with the document search, had scheduled vacations during the holidays. While the magnitude of the request and the time necessary to complete the search and review is the primary reason for the requested extension, the timing of the request has impacted that Agency’s capacity to conduct the search and review process. Based on the Agency’s petition, I find that in light of the need to search for, collect, and examine the records, the capacity of the Agency to produce the request without the extension, and the efforts undertaken by the Agency in fulfilling the current request, the Agency has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The Agency is granted an extension of 20 business days. To the extent possible, the Agency must provide responsive records on a rolling basis. Conclusion Accordingly, I find the Agency has established good cause for a time extension of 20 business days as described above. This office encourages Attorney Katz and the Agency to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an

Ricks Frazier, Esq. SPR23/0045 Page 4 January 17, 2023 agency shall suggest a reasonable modification to 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 to produce records sought more efficiently and affordably). Please note, Attorney Katz 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(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Joshua I. Katz, Esq.