William Fernandes v. Massachusetts Gaming Commission (SPR 20230596)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 4, 2023 SPR23/0596 Carrie Torrisi, Esq. Deputy General Counsel Massachusetts Gaming Commission 101 Federal Street, 12th Floor Boston, MA 02110 Dear Attorney Torrisi: On March 29, 2023, this office received your petition on behalf of the Massachusetts Gaming Commission (Commission) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Commission furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On January 31, 2023, William Fernandes requested: [1] . . . any and all records in your custody related to corroborated Fair Deal Criminal Complaints filed against Encore Hotel and Casino, Boston[;] [2] . . . any Mass State Police or Everett Police reports related to Encore Boston Harbor that were referred to your offices during the same timeframe. Previous Appeal This request was the subject of a previous appeal. See SPR23/0413 Determination of the Supervisor of Records (March 15, 2023). In my March 15th determination, I ordered the Commission to provide a response in a manner consistent with the Public Records Law and its Regulations. Subsequent to the opening of this petition, Mr. Fernandes sent an email on April 3, 2023, objecting to the fee petition. Petition 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). 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

Carrie Torrisi, Esq. SPR23/0596 Page 2 April 4, 2023 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 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 March 29th petition, the Commission argues the following in support of its request to charge for segregation and redaction under Exemption (a) and attorney-client privilege:

Carrie Torrisi, Esq. SPR23/0596 Page 3 April 4, 2023 [the records] are not stored in a centralized location of “referred” police reports and while we could certainly complete the request, it would require an extensive search … We have run an initial search of our system, which has returned 2,502 results that will require review and redaction. The basis for this petition is that the search results are likely to contain information which is required by law to be segregated or redacted pursuant to the statutory exemption to the Massachusetts Public Records Law, G.L. c. 4, § 7(26)(a), including potential criminal offender record information and attorney-client privileged information, for which the public records law permits an agency to assess a fee under M. G. L. c. 66, § 10(b). Please be advised, records custodians may assess fees for time spent segregating or redacting records where such segregation or redaction is required by law. See 950 C.M.R. 32.07(2)(d) (stating that fee for segregation or redaction is permissible when approved by Supervisor or when required by law (emphasis added)). Where the Commission only seeks to assess fees pursuant to the Exemption (a) of the Public Records Law and attorney-client privilege which is required by law, I find it unnecessary to opine on whether the Commission may assess fees for segregating and redacting the records. Conclusion In light of the above, it is unnecessary to opine on the Commission’s petition for permission to charge for time spent segregating or redacting responsive records. Accordingly, I will consider this matter closed. Sincerely, Manza Arthur Supervisor of Records cc: William Fernandes