Concerned Parents v. Office of the Attorney General (SPR 20231471)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 11, 2023 SPR23/1471 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 Concerned Parents of MA (requestor) 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 June 5, 2023, the requestor sought the following public records for March 1, 2021: Emails from the following people sent to your office the Attorney General of MA, and anything they sent with their emails to you ... or any Attorney General for California they sent with their emails to you . . . or any Attorney General for Delaware[.] The AGO responded on June 20, 2032. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR23/1471, 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 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. SPR23/1471 Page 2 July 11, 2023 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 June 20th response In its June 20, 2023 response, the AGO asserted, “...having spent more than 4.0 hours on your previous three requests for the same records/information as explained above and therefore exhausting the 4.0 ‘free’ hours afforded to you by G.L. c. 66, § 10(d)(ii)(B), 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 is the following: one-half (0.5) hour already expended by staff to search for and compile the responsive 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 advised that it did “...not anticipate that any AGO staff with a salary of less than $25.00 per hour can perform the necessary search, review, and segregation.” The AGO provided a fee estimate of $62.50 and further stated that the “. . . fee estimate is based on a total of three (3) minutes per item for AGO staff to perform the following tasks:” [1.] 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 [2.] 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 [3.] 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 Current appeal In the appeal, the requestor claims that the AGO should, “[r]edo it’s fee estimate in alignment with G. L. c. 66, § 10(d)(i) The fees must reflect the actual cost of complying with a particular request, and not allow the AGO to charge us for someone else’s records request or appeal ...”

Lorraine A.G. Tarrow, Esq. SPR23/1471 Page 3 July 11, 2023 Please be advised, the AGO may not assess a fee for search time already expended on the previous three requests where the requestor has modified the intitial request. The AGO may assess a fee for search time limited to the June 5, 2023 request. Conclusion Accordingly, the AGO is to provide the requestor with a response to the request, provided in a manner consistent with the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Concerned Parents of MA