Commonwealth Transparency v. Executive Office of Technology Services and Security (SPR 20230144)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 31, 2023 SPR23/0144 Michelle Burwell Records Access Officer Executive Office of Technology Services and Security One Ashburton Place, Room 804 Boston, MA 02108 Dear Ms. Burwell: I have received the petition of Commonwealth Transparency appealing the response of the Executive Office of Technology Services and Security (Office/EOTSS) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 29, 2022, Commonwealth Transparency 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. On January 13, 2023, the Office provided a fee estimate. Unsatisfied with the Office’s response, the requestor petitioned this office and this appeal, SPR23/0144, was opened as a result. 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

Michelle Burwell SPR23/0144 Page 2 January 31, 2023 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). 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). The Office’s January 13th Response In its January 13, 2023 response, the Office 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…. 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. 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 privilege, in which case EOTSS must prepare a privilege log listing each such privileged record that is being withheld…. Given the volume of information requiring review, EOTSS’s good faith estimate of costs amounts to approximately $1,091.75.

Michelle Burwell SPR23/0144 Page 3 January 31, 2023 This amount is based upon the following: EOTSS estimates, conservatively and in good faith, that it will expend an average of 1 minute to review each record that has been identified, and an additional 8 hours to sort and, if necessary, redact or log as “privileged” any information or records that are not subject to disclosure. 2,140 records x 1 minute/records = 2140 minutes or 26.75 hours + 8 hours = 43.67 hours at the statutory rate of $25/hour=$1,091.75. Based on the Office’s response it is unclear how it may assess a fee for “sorting” the records. The Office must explain how the task constitutes searching, compiling, segregating or redacting the records. The Office must clarify this matter. Please be advised, the Office cannot assess a fee for time spent creating a privilege log. The Office must further confirm that $25.00 is 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. The Office must clarify this matter. I encourage the requestor and the Office to communicate further in order to facilitate producing records efficiently and affordably. The requestor may wish to include applicable time periods or additional factors to enable the search to be processed in an efficient manner. G. L. c. 66, § l0(a)(i). The Office 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). Conclusion Accordingly, the Office is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency