Laura H. Ortiz v. Office of the Attorney General (SPR 20231584)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 24, 2023 SPR23/1584 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. Subsequently on January 20, 2023, Ms. Ortiz modified her request for the following records, “[a]ny emails and attachments from @doj.ca.gov for 3/1/21.” Previous appeals This request was the subject of previous appeals. See SPR22/2691 Determination of the Supervisor of Records (December 7, 2022), SPR23/0022 Determination of the Supervisor of Records (January 20, 2023); SPR23/0860 Determinations of the Supervisor of Records (May 15, 2023 and June 5, 2023) and SPR23/1278 Determination of the Supervisor of Records (June 22, 2023). The AGO responded on July 7, 2023. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR23/1584, was opened as a result. Current Appeal In her appeal, Ms. Ortiz states that the AGO is charging excessive fees and that the AGO continued to charge as it failed to follow the SPR determination and specifically the fees must 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. SPR23/1584 Page 2 July 24, 2023 reflect the actual cost of complying with a particular request. Ms. Ortiz asserts, “AGO stated only thirty-nine (39) were responsive, so the excessive fees do not match the records found responsive. Their AGO overstatement of fees is designed to limit, deter, or prevent access to requested public records.” Ms. Ortiz further stated, that the “[t]he response clearly indicates that the organization of records is at issue with the way the AGO custodial retained these 39 responsive emails and given that @doj.ca.gov was an easily retrievable email address regardless how many CA AG’s were corresponding for these responsive records as well as given it was for one single days date. The amount of hours/minutes calculated by the AGO in their fee estimate was excessively inflated and improbable that it would take 270 minutes to ‘compile, segregate, redact, review and reproduce’ these emails, their AGO fee was unreasonably calculated and meant to be punitive. It’s unlikely or logical that it took or would take the AGO 7 Minutes per emails then multiplied by 39 emails responsive (4.5 hours or 270 minutes/39 emails=7 minutes) in order to ‘compile, segregate, redact, review and reproduce’ each individual email. The AGO charging for records organization issues is onerous and is designed to limit, deter, or prevent access to requested public records.” Ms. Ortiz asserts, “[t]he AGO should be denied the ability to charge us any fees given their fees were calculated excessively as well as were unreasonable and the AGO should be ordered and compelled by the SPR to produce the CA AGO emails to us post haste.” 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 July 7th fee estimate In its July 7, 2023 fee estimate, the AGO stated, “... although there were multiple appeals and subsequent AGO responses to various iterations of this request, to be clear – this letter

Lorraine A.G. Tarrow, Esq. SPR23/1584 Page 3 July 24, 2023 concerns only the January 20 request and the sole outstanding issue related to SPR23/1278.” The AGO reduced its fee estimate from $162.50 and provided a fee estimate of $12.50 and stated as follows: ... we estimate that the labor required to search for, identify, locate, compile, and review the thirty-nine (39) electronic items/records you requested for responsiveness and for information protected by law amounts to four and one-half (4.50) hours. This estimate accounts for: two and one-quarter (2.25) hours already expended by staff to search for, identify, locate, and categorize potentially responsive records along the parameters of your January 20 Request; one-quarter (0.25) hour already expended by staff to compile and prepare the records for review; and two (2.0) hours at 3 minutes per item/record for qualified staff to review the records found for responsiveness and, as necessary, redact protected information or otherwise segregate the records, all at the rate of $25.00 per hour. However, notwithstanding our objections, in this instance we will honor the G.L. c. 66, § 10(d)(ii)(B) provision that no fees 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 January 20 Request is one-half (0.50) hour at the rate of $25.00 per hour, which amounts to $12.50. The AGO advised that there are redactions necessary. In a November 21, 2022 response, the AGO previously advised that the redactions are attorney-client privileged communications. Based on the AGO’s responses, 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 now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz