Jon Lamson v. Department of Public Utilities - Legal Division (SPR 20230310)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 23, 2023 SPR23/0310; SPR23/0311 Mathieu Cunha, Esq. Legal Division Department of Public Utilities One South Station Boston, MA 02110 Dear Attorney Cunha: I have received your petition on behalf of the Department of Public Utilities (Department) 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, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On February 3, 2023, Jon Lamson, of the New England Climate Dispatch, requested “all email communication between [three] DPU commissioners ... and ... [a list of specified email addresses] going back to January of 2020.” 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. 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

Mathieu Cunha, Esq. SPR23/0310; SPR23/0311 Page 2 February 23, 2023 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 February 15, 2023 petition, the Department requests an extension of 20 business days, and provides the following information in support of its request: The Department conducted a preliminary search and collected approximately 4,000 items. According to this preliminary assessment, which is not inclusive of all the records requested by the requester, the Department has determined that it will require an extensive amount of time to complete the request. Because of the large volume of records due to the broad nature of the request, the Department must thoroughly examine the records to avoid disclosure of confidential material submitted by one of the named email addresses to the Department pursuant to G.L. c. 25, § 5D, which gives the Department the authority to protect from public disclosure trade secrets, confidential, competitively sensitive, or other proprietary information provided to the Department. . . . Given that there are approximately 4,000 items that the Department must review and redact, this will impose an onerous burden on the Department, which will have to devote limited resources to review and redact these records.... The Department estimates it will expend 200 hours to collect, segregate and redact the records. Based on the Department’s petition, I find that in light of the need to search for, collect, segregate and examine the records, the scope of redaction required to prevent unlawful disclosure, and the capacity of the Department to produce the request without the extension, the Department has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)- (iv). Accordingly, the Department is granted an extension of 20 business days. Petition to Assess Fees – Agencies 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

Mathieu Cunha, Esq. SPR23/0310; SPR23/0311 Page 3 February 23, 2023 (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 – 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 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).

Mathieu Cunha, Esq. SPR23/0310; SPR23/0311 Page 4 February 23, 2023 Current Petition In its petition, the Department cites Exemption (g) of the Public Records Law and indicates that it will need to redact “trade secrets, confidential, competitively sensitive, or other proprietary information provided to the Department.” The Department argues that “the information must be segregated and redacted to secure the protection of confidential materials submitted to the Department.” See G. L. c. 4, § 7(26)(g). In light of the Department’s petition, I find the Department 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, the Department may assess a fee for the segregation and redaction of such exempt material. Conclusion Accordingly, I find the Department has established good cause for a time extension of 20 business days as described above. Additionally, to the extent the responsive records contain the exempt information described above, the Department may assess a fee for segregation and redaction. This office encourages Mr. Lamson and the Department to continue to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an 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). Any subsequent fee estimate from the Department must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Mr. Lamson 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: Jon Lamson