Laura H. Ortiz v. Attorney General's Office (SPR 20230860)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 15, 2023 SPR23/0860 Lorraine A.G. Tarrow, Esq. Assistant Attorney General 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. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 21, 2022, Ms. Ortiz requested the following records: [1] Any Emails & Attachments for AGO email server address: @mass.gov from: @doj.ca.gov Timeline for [1]: 2/28/21 [2] Any Emails & Attachments for AGO email server address: @mass.gov from: @ag.state.mn.us Timeline for [2]: 2/28/21. Previous appeals This request was the subject of previous appeals. See SPR22/2691 Determination of the Supervisor of Records (December 7, 2022) and SPR23/0022 Determination of the Supervisor of Records (January 20, 2023). The AGO responded on February 3, 2023. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR23/0860, 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). 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. SPR23/0860 Page 2 May 15, 2023 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 responses In its February 3, 2023 response, the AGO asserted that it “... has spent a considerable amount of electronic search time to assist you in determining which subset of records could ‘affordably’ be provided to you, in this instance reducing the estimated cost from $775.00 to $162.50. In order to avoid the ‘fishing expedition’ this has become, we have asked you from the initiation of your request to provide us with a particular topic/subject in which you are interested, but you have refused to do so. As the AGO has previously responded fully to your request for ‘[a]ny emails and attachments from @doj.ca.gov for 3/1/21’ and all associated appeals, no additional response is necessary.” In its December 21, 2022 response, the AGO provided a fee estimate of $162.60. In support of the fee estimate, the AGO advised, “…we estimate that the labor required to review the thirty-nine (39) records for responsiveness to this particular request and for information protected by law amounts to ten and one-half (10.5) hours. This estimate accounts for: eight and one-half (8.5) hours already expended by staff to search for and categorize potentially responsive records along the parameters of your multiple requests for the same records and two (2.0) hours for qualified staff to review the records found for responsiveness and, as necessary, redact protected information or otherwise segregate the records as outlined above, all at the rate of $25.00 per hour.” The AGO further stated, “[p]ursuant to G.L. c. 66, § 10(d)(ii), an agency may charge 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, however, not to exceed $25.00 per hour. We do not anticipate that any AGO staff with a salary of less than $25.00 per hour can perform the abovementioned search, review, and segregation.” Current Appeal In her appeal, Ms. Ortiz does not raise any issues concerning the AGO’s response nor the fee estimate of $162.50. Consequently, I find the basis of Ms. Ortiz’s appeal is unclear. Ms. Ortiz is reminded that all petitions for appeal "shall specifically describe the nature of the requestor's objections to the response or failure to timely respond." 950 C.M.R. 32.08(1)(f). Please be aware that the request must reasonably describe the records sought. G. L. c. 66, § 10(a)(i). Ms. Ortiz may wish to clarify this matter and her objections to the AGO’s response.

Lorraine A.G. Tarrow, Esq. SPR23/0860 Page 3 May 15, 2023 In light of Ms. Ortiz’s appeal and the AGO’s response, I encourage Ms. Ortiz and the AGO to communicate in order to facilitate producing records efficiently and affordably. Ms. Ortiz may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The AGO 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). Ms. Ortiz is also reminded that an appeal to this office must be filed within ninety calendar days of the date of the request letter, or within ninety calendar days of the date of a written response from the record custodian. See 950 C.M.R. 32.08(1)(d); 950 C.M.R. 32.08(1)(e). Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz