Laura H. Ortiz v. Office of the Attorney General (SPR 20230180)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 14, 2023 SPR23/0180 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 12, 2022, Ms. Ortiz requested numerous public records for the time period: April 20 2022 through October 13, 2022 that included names, words, phrases, records responsive for a particular time period. On November 14, 2022, Ms. Ortiz modified her request as follows: This is a formal public records request under the Massachusetts Public Records Law M.G.L. c66, § 10 for the following we modified to decrease volume and also additionally are requesting specific RAO Superior knowledge given we have no idea if these modified records are what we seek, we may need a further sample of records, but need assistance in understanding any search capabilities in order to do so Part A We asked that the AGO: Please provide the following public records for the time period: April 20 2022 through October 13, 2022: Any electronic mail or texts where any of the following phrases are contained in the subject, body or any attachment and that was not sent to me: 1. ‘Ms. Ortiz’; ‘Laura Ortiz’; however else you referred to me by instead of using ‘Ms. Ortiz’ or ‘Laura Ortiz’ 2. the public records law does not require that an agency create a new record – will be helpful to you in responding to the request 3. ‘Lory is familiar with the numerous public records requests that our office has received from’ All to/from/cc/bcc: anyone at the Attorney General’s Office regardless if Intra Attorney General’s Office . . . 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. SPR23/0180 Page 2 February 14, 2023 Previous appeals This request was the subject of previous appeals. See SPR22/2444 Determination of the Supervisor of Records (November 10, 2022) and SPR22/2783 Determination of the Supervisor of Records (December 19, 2022). The AGO responded on January 4, 2023. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR23/0180, 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). 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 January 4th fee estimate In its January 4, 2023 fee estimate, the AGO explained that the fee of $100.00 is related to the prior request. The AGO advised that “… the estimated cost to search for, review, and subsequently provide you with records not otherwise exempt from disclosure or privileged that are responsive to the two (2) subsets of records you chose from our October 26 Response to your October 12 Request, and which we only reiterated in our November 29 Response, is appropriate. We also maintain that your November 14 communication is not a ‘new’ request or a ‘modified’ request. Rather, because it seeks a portion the very same records in your October 12 Request, it is not a separate request at all, merely a response to our October 26 fee estimate.” The AGO’s November 29th fee estimate In its November 29, 2022 fee estimate, the AGO provided a fee of $100.00 and stated that “… the labor required to review the eighty-three (83) records for responsiveness to this particular request and for information protected by law amounts to eight (8.0) hours. This estimate accounts for: four (4.0) hours already expended by staff to search for and categorize potentially responsive records along the parameters of your prior request for the same records and four (4.0) hours for qualified staff to review the records found for responsiveness and, as

Lorraine A.G. Tarrow, Esq. SPR23/0180 Page 3 February 14, 2023 necessary, redact protected information or otherwise segregate the records as outlined above, all at the rate of $25.00 per hour. However, 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 November 14 request is four (4.0) hours at the rate of $25.00 per hour, which amounts to $100.00.” The AGO further advised in its November 29, 2022 fee estimate, “[a]s we noted in our October 26, 2022 response, we have already spent four (4.0) hours of electronic search and segregation time in responding to your October 12, 2022 request … the total amount of chargeable labor to respond to your November 14 request is four (4.0) hours at the rate of $25.00 per hour, which amounts to $100.00.” The AGO provided the following details regarding the fee estimate: 1) April 20, 2022-October 12, 2022 Terms: ‘the public records law does not require that an agency create a new record’ or ‘Lory is familiar with the numerous public records requests that our office has received from’ Results: 16 Items Hour(s) of Labor: 0.75 [Cost: $18.75] 2) Time Frame: 4/20/22-5/20/22 Terms: “Ortiz” Results: 67 Items Hour(s) of Labor: 3.25 [Cost: $81.25] (Cost in Brackets in the [AGO] original) Current appeal In her appeal, Ms. Ortiz claims, “[b]ased on the AGO’s response, it is unclear if the AGO is charging for search time for a prior request. Further their RAO was required to provide us with a revised fee estimate limited to the narrowed request within 10 business days of 11/14/22 modification new request for narrowed scope records, yet continues to refuse to do so. Their RAO instead illegally continues to charge us for prior requests illegally here.” Please be advised, the AGO may not assess a fee for search time already expended on the Ocotber 12th request where Ms. Ortiz modified her request on November 14, 2022. The AGO may assess a fee for search time limited to the November 14th modified request. Conclusion Accordingly, the AGO is to provide Ms. Ortiz with a response to the request, provided in a manner consistent with the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic

Lorraine A.G. Tarrow, Esq. SPR23/0180 Page 4 February 14, 2023 copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz