Open Commonwealth v. Executive Office of Technology Services and Security (SPR 20230081)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 24, 2023 SPR23/0081 Luke Ferreira, Esq. Assistant General Counsel Executive Office of Technology Services and Security One Ashburton Place, Room 804 Boston, MA 02108 Dear Attorney Ferreira: I have received your petition on behalf of the Executive Office of Technology Services and Security (Office/EOTSS) 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 EOTSS furnished a copy of this petition to the requestor. Id. On December 29, 2022, Open Commonwealth requested: Any tickets and/or orders, including but not limited to service now records/documents/communications, emails, text messages, phone messages and/or written communications for the following: [1] The creation of any account(s) for [a named individual][;] [2] Any changes to the account(s) in number 1 above[;] [3] The granting and/or denying of [a named individual]… any permissions regarding the account(s) in number 1 above[;] [4] The removal and/or deletion of permissions for the account(s) in number 1 above[;] [5] Any communications from the account(s) in number 1 above . . . relating to [a named individual] leaving his position at DALA. Please provide any electronic communications (including but not limited to email, attachments, text messages, calendar entries, voice mail messages) and/or physical documents which reference any of the records in number 1 through 5 above. In an email to this office and EOTSS on January 16, 2023, the requestor objected to EOTSS’ petition for an extension of time and petition to assess fees. 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

Luke Ferreira, Esq. SPR23/0081 Page 2 January 24, 2023 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 13, 2023 petition, EOTSS seeks an extension of “20 business days… in which to prepare its response.” EOTSS states: Since January 4, 2023, approximately four aggregate hours have been spent by multiple EOTSS employees compiling the potentially responsive records thus far at no cost to the requestor. EOTSS also notes that this requestor, OpenCommonwealth.org has submitted multiple, related public records to EOTSS during the past six months. OpenCommonwealth.org has also appealed EOTSS’ responses to the Supervisor, necessitating supplemental responses from EOTSS, most recently on January 11, 2023 (in the matter of SPR22-2857). In combination, these requests and appeals have created a substantial burden on EOTSS’ resources[.]

Luke Ferreira, Esq. SPR23/0081 Page 3 January 24, 2023 In its initial search for responsive records EOTSS has identified more than 900,000 potentially responsive records. Even after further refining the search criteria to more narrowly conform to the details of the request, EOTSS has identified 2,140 potentially responsive records for review. I find that in light of the need to search for, collect, and examine the records and the efforts undertaken by EOTSS in fulfilling the current request and previous requests, EOTSS has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant EOTSS an extension of 20 business days to furnish copies of records responsive to Open Commonwealth’s request. See G. L. c. 66, § 10(c). Petitions 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

Luke Ferreira, Esq. SPR23/0081 Page 4 January 24, 2023 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 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 January 13th petition, EOTSS states: The identified documents may contain material not subject to public disclosure pursuant to M.G.L. c. 4, § 7, cl. 26, such as exemptions (b), (d), (g), or (n). Accordingly, any such information must be segregated or redacted from the records before any responsive records are produced to a third party such as the requestor. Similarly, any responsive records may also be subject to an attorney- client and/or work product doctrine privilege, in which case EOTSS must prepare a privilege log listing each such privileged record that is being withheld. As a state agency with the responsibility for maintaining and supporting the Commonwealth’s information technology infrastructure and cybersecurity, as well as administering systems with extensive confidential information, EOTSS has an obligation to ensure proper procedures are maintained to prevent the dissemination of information which is protected from disclosure by law. Fulfilling this obligation requires a careful review and segregation of records intended for disclosure, which can be a labor-intensive activity involving the application of multiple exemptions to the public records law to a single piece of information. Some information is simultaneously protected by more than one exemption or different exemptions depending on context or the time of disclosure. The cost estimate provided below is for the remaining time required to compile the records, as well as the segregation and redaction process as a whole for the records which have been identified, and in the view of the EOTSS, this segregation process cannot be split up by exemption. Since the segregation and redaction process is required by law, EOTSS is entitled to charge a fee for the cost of production and does not view this petition as a necessary prerequisite to charging a fee to the requestor and will communicate its fee estimate to the requestor separately. Reviewing and, where necessary, redacting the approximately 2,140 potentially responsive records will impose a significant burden on EOTSS, which will have

Luke Ferreira, Esq. SPR23/0081 Page 5 January 24, 2023 to devote a substantial portion of its limited human resources to review and redact these records…. In light of EOTSS’s petition, I find EOTSS 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). To the extent the responsive records contain the exempt information as described above, EOTSS may assess a fee for the segregation and redaction of such exempt material. Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, EOTSS is permitted an extension of 20 business days to furnish copies of records responsive to Open Commonwealth’s request. Further, EOTSS is permitted to charge for time spent segregating and/or redacting the requested records. I encourage the parties to communicate further to enable EOTSS to provide records in an efficient and affordable manner. Please note, the requestor 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: Open Commonwealth