Laura H. Ortiz v. Attorney General's Office (SPR 20231521)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 17, 2023 SPR23/1521 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 12, 2022, Ms. Ortiz requested the following records (See SPR22/2444): Part 1 Please provide the following public records for the time period: April 20 2022 through October 13, 2022: Any electronic mail or texts where any of the following phrases are contained in the subject, body or any attachment and that was NOT sent to me: 1. ‘Ms. Ortiz’ ; ‘Laura Ortiz’ ; however else you referred to me by instead of using ‘Ms. Ortiz’ or ‘Laura Ortiz’ 2. ‘the public records law does not require that an agency create a new record – will be helpful to you in responding to the request’ 3. ‘Lory is familiar with the numerous public records requests that our office has received from’ All to/from/cc/bcc: anyone at the Attorney General’s Office regardless if Intra Attorney General’s Office Part 2 Please provide the following public records for the time period: April 20 2022 through October 13, 2022: Any electronic mail or texts where any of the following phrases are contained in the subject, body or any attachment and that was not sent to me: 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. SPR23/1521 Page 2 July 17, 2023 1. ‘Ms. Ortiz’ ; ‘Laura Ortiz’ ; however else you referred to me by instead of using ‘Ms. Ortiz’ or ‘Laura Ortiz’ 2. ‘the public records law does not require that an agency create a new record – will be helpful to you in responding to the request’ 3. ‘Lory is familiar with the numerous public records requests that our office has received from’ All to/from/cc/bcc these Attorney General staff regardless if Intra Attorney General’s Office Amy Spector, Lorraine Tarrow, Hanne Rush Subsequently, on June 14, 2023, Ms. Ortiz modified Part 1 of her request “... to only request emails from April 20 2022-September 12, 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 June 29, 2023, providing a fee estimate. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR23/1521, 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. 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 29th fee estimate In its June 29, 2023 fee estimate, the AGO provided a summary of responsive records as follows:

Lorraine A.G. Tarrow, Esq. SPR23/1521 Page 3 July 17, 2023 Part 1 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 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 stated, “[t]he labor required to search for, compile, and review the eighty-three (83) electronic items/records you selected for responsiveness and for information 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.” The AGO calculated a fee of $18.75, taking into account the four hours of labor. The AGO opined that the, “...amount of chargeable labor to respond to your November 14 ‘modified request’ to be three-quarters (0.75) of an hour at the rate of $25.00 per hour, which amounts to $18.75.” The AGO advised that there are redactions necessary, however, it is unclear whether the redactions are pursuant to Exemption (a) or other exemptions required by law. 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 must clarify and also provide the relevant statutes, if any. Part 2 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 stated that “... Ms. Ortiz’s Part 2 of [the] ...request [is] unchanged (:This Part … Scope’s responsive emails were stated to be 67 items, we seek all emails here.” In its response the AGO stated, “[i]n order to determine how many electronic items are responsive to your June 14 Request and what the cost is to provide you with those responsive records that are not exempt or privileged, for a full explanation of how we calculate charges,

Lorraine A.G. Tarrow, Esq. SPR23/1521 Page 4 July 17, 2023 please see our March 2 Response. We need to run another search for potentially responsive records along the new parameters. Where we have advised you in our March 2 Response that ‘we will not run repeated and varied searches until after a reasonable fee has been paid,’ and the public records law allows for such pre-payment, we require that you pay in advance for our time to conduct this search. In this instance, we calculate that one half (0.5) hour of labor is necessary at the rate of $25.00 per hour, which amounts to $12.50.” Current Appeal In her appeal, Ms. Ortiz states, “[w]e take exception to the 6/29/23 AGO Substantive Response to a narrowed scope modification and failing to comply with G. L. c. 66, § 10(a);(b);(d);(e) and G.L. c. 4, § 7, cl. 26(d); G. L. c. 4, § 7(26)(b) and 950 C.M.R. 32.06-32.08 and while withholding records illegally to AGO’s 6/14/23 Attorney General Office Public Records request for April 20 2022-October 13 2022 emails & texts and challenge to excessive fees not related to responsive records and also no exemption claimed while withholding records nor any privilege log produced].” Mr. Ortiz further stated, “[o]n 6/14/23 we requested a new set of public records modifying a prior request we made more than 7 months ago well past the 90 days timeline from that response and also well past 90 days from the last updated fee estimate on 3/2/23 after SPR Determinations, as well as we on June 14th reduced the volume of records and for part of the request the timeline also significantly reducing the anticipated sample of records to more likely than not 67 emails for Parts A and Parts B and eliminating the potential duplicate emails. The Attorney General’s Office refused to follow public records regulations and other state and federal access statutes so we subsequently file this appeal ... Instead of producing the responsive records now more likely than not to only 67 emails, instead the AGO refused, and is trying to charge us illegally for prior records requests in excessive fees for less than 4 hours work calling them ‘pre payments’ and is refusing to give us a new fee estimate only responsive to whatever responsive records exist for this new narrowed scope.” Based upon a review of the file, it appears Ms. Ortiz modified Part 1 of her request. As such, it is unclear whether the AGO requested a fee of $12.50 for a ½ hour of search time to be applied to Part 1 or Part 2 of the records request. The AGO must clarify. Conclusion Accordingly, the AGO is to provide Ms. Ortiz with a response 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.

Lorraine A.G. Tarrow, Esq. SPR23/1521 Page 5 July 17, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz