Jonathan M. Silverstein v. Division of Occupational Licensure (SPR 20230942)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 15, 2023 SPR23/0942 Jessica L. Ellis, Esq. Assistant General Counsel for Public Affairs Division of Occupational Licensure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Attorney Ellis: On May 9, 2023, this office received your petition on behalf of the Division of Occupational Licensure (Division) 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 Division furnished a copy of this petition to the requestor. Id. On April 5, 2023, Attorney Jonathan Silverstein, of Blatman, Bobrowski, Haverty & Silverstein, LLC, requested the following records from January 1, 2020 to present: 1. All draft amendments to the Board's regulations, 254 CMR, considered, reviewed or discussed at any meeting of the Board (hereinafter, the "Proposed Amendments"); 2. Any non-privileged correspondence, including electronic correspondence, received or generated by the Board, its members and agents, relating to the Proposed Amendments. The Division provided Attorney Silverstein with records responsive to item 1 on April 20, 2023. On April 21, 2023, the parties reached an agreement to modify item 2 of Attorney Silverstein’s request as pertaining to the following records from January 1, 2020 to present: 2. Any non-privileged correspondence, including electronic correspondence, received or generated by the Board, its members and agents, relating to the Proposed Amendments, using the following search terms: Amend! /2 regulation! Revis! /2 regulation! Amend! /2 “254 CMR” Revis! /2 “254 CMR” 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

Jessica L. Ellis, Esq. SPR23/0942 Page 2 May 15, 2023 Amend! /2 “254 CMR” Change! /2 “254 CMR.” Petitions 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). 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). 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

Jessica L. Ellis, Esq. SPR23/0942 Page 3 May 15, 2023 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). Conclusion The Division submitted their petition on May 9, 2023 more than ten business days after the parties confirmed their agreement to modify item 2 of the request. In light of the fact the Division has not demonstrated it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records cannot be granted at this time. 950 C.M.R. 32.06(4)(g). Sincerely, Manza Arthur Supervisor of Records cc: Attorney Jonathan Silverstein