Laura H. Ortiz v. Office of the Attorney General (SPR 20231142)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 14, 2023 SPR23/1142 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. See 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. 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 March 2, 2023. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR23/1142, 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. 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. SPR23/1142 Page 2 June 14, 2023 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 March 2nd fee estimate In its March 2, 2023 fee estimate, the AGO asserted, “[i]n compliance with the Supervisor’s directive that “[t]he AGO may assess a fee for search time limited to the November 14th modified request,” we have revised our fee estimate to search for, compile, and review (segregate) the eighty-three (83) electronic items that are potentially responsive to your November 14 request; for the following categories of records: 1) Time Frame: 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 2) Time Frame: April 20, 2022-May 20, 2022 Terms: ‘Ortiz’ Results: 67 Items All to/from/cc/bcc these Attorney General staff regardless if Intra Attorney General’s Office: Amy Spector Lorraine Tarrow Hanne Rush The AGO further explained, “... our fee estimate is based on a total of three (3) minutes per ‘item’ for AGO staff to perform the following tasks:” • Item-by-item visual scan to confirm responsiveness; page-by-page visual scan to determine the categories into which the item falls, e.g., Disclose in Entirety, Withhold in Entirety, Redact, Needs Further Review. One (1) minute per item • Determine privilege(s)/exemption(s) that form the basis of the withholding and/or redaction for each item/page; propose redactions for further review; provide initial analysis of those items needing further review in their entirety. One (1) minute per item • Final determination of privilege(s)/exemption(s) that apply to withhold and/or redact each item/page; accept or edit proposed redactions; final analysis of those items needing review in their entirety; redistribute in categories as necessary. One (1) minute per item The AGO further asserted, “... the labor required to search for, compile, and review the eighty three (83) electronic items/records you selected for responsiveness and for information

Lorraine A.G. Tarrow, Esq. SPR23/1142 Page 3 June 14, 2023 protected by law amounts to four and three-quarter (4.75) hours. This estimate accounts for: one- half (0.5) hour already expended by staff to search for and categorize potentially responsive records along the parameters of your request; one-quarter (0.25) hour to compile and prepare the records for review; and four (4.0) 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. 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 three-quarters (0.75) of an hour at the rate of $25.00 per hour, which amounts to $18.75.” Based on the AGO’s response, I find it has met its burden to explain how the indicated amount of time is necessary to search, review, segregate, and/or redact responsive records. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz