Michael Sacco, Esq. v. Worcester Regional Retirement System (SPR 20232034)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 12, 2023 SPR23/2034 Rachel Grimaldi Executive Director Worcester Regional Retirement System 23 Midstate Drive, Suite 106 Auburn, MA 01501 Dear Ms. Grimaldi: I have received the petition of Michael Sacco, Esq., of The Law Offices of Michael Sacco, P.C., appealing the response of the Worcester Regional Retirement System (Retirement System/WRRS) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 28, 2023, Michael Sacco, Esq. requested: [1] Any and all documents pertaining to compensation paid to the WRRB Chairman, including but not limited to any Board meeting minutes reflecting any discussion and vote pertaining to the compensation paid to the Chairman, for the period of January 1, 2020, to the present; [2] A copy of [an identified individual’s] executed First Amendment to Employment Agreement, and documents pertaining to any indemnification paid to him pursuant to Section 6 of the Employment Agreement, as amended; [3] Any and all email and text communications exclusively by and between [two identified individuals], whether to [an identified email address] or to him directly at his WRRB email address, for the period of June 1, 2019, to March 9, 2023; [4] Any and all documents pertaining to the purchase of a cell phone, tablet, computer, laptop or any other device for [an identified individual], including Board meeting minutes in which said purchase was discussed and approved; [5] Any and all documents pertaining to reimbursement to [an identified individual] for expenses incurred from January 1, 2020, to the present; [6] Any and all communications by and between two (2) or more Board members, including but not limited to, text and email messages, utilizing both personal and WRRB email addresses and/or cell phones; [7] Any and all communications by and between any Board member and Board staff that reference or discuss [an identified individual] on which [this identified individual] was not copied; 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

Rachel Grimaldi SPR23/2034 Page 2 September 12, 2023 [8] Any and all documents that reference or discuss [an identified individual] on which [this identified individual] was neither copied nor sent directly, including emails and/or text messages sent or received from third parties, excluding documents that bear [this identified individual’s] electronic signature which were sent to members, retirees and/or member unit officials and/or employees; [9] Any and all complaints the WRRB received alleging [an identified individual] was not performing his duties or alleging any wrongdoing on [this identified individual’s] part; [10] Any and all drafts of [an identified individual’s] WRRB contract/ employment agreement; [11] Any and all Board meeting minutes in which [an identified individual] was discussed, including executive session minutes; [12] Board meeting minutes, whether approved or in draft form, or any handwritten notes from the meeting, that authorized the recent public records request sent to Massachusetts retirement boards; [13] Any and all Board meeting minutes which discuss the advertising, hiring and/or recruiting for the CEO position (this request only pertains to the period of June 1, 2019, through December 31, 2019)[.] On August 14, 2023, Attorney Sacco revised his request and stated:  Bullet point three (3) is hereby revised, now seeking, “Any and all email and text communications exclusively by and between [two identified individuals], whether to [an identified individual’s] WRRB-issued cell phone or to him directly at his WRRB email address, for the period of January 1, 2020, to March 9, 2023;”  Bullet point six (6) is hereby revised, now seeking, “Any and all communications by and between two(2) or more Board members, including but not limited to, text and email messages, utilizing both personal and WRRB email addresses and/or cell phones, that reference or discuss [an identified individual] on which [an identified individual] was not copied, for the periods of June 1, 2019 to December 31, 2019, and January 1, 2022 through the date of production;”  Bullet point eleven (11) is hereby revised, now seeking, “Any and all Board meeting minutes in which [an identified individual] was discussed, including executive session minutes, for the period of February 1, 2023 through June 27, 2023. On August 25, 2023, the Retirement System responded and provided a fee estimate. Unsatisfied with the Retirement System’s response, Attorney Sacco petitioned this office and this appeal, SPR23/2034, was opened as a result. While this appeal was pending, the Retirement System provided a further response dated August 31, 2023.

Rachel Grimaldi SPR23/2034 Page 3 September 12, 2023 The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 Retirement System’s August 25th Response In its August 25, 2023 response, the Retirement System provided a fee estimate of $1750.00. The Retirement System states:

Rachel Grimaldi SPR23/2034 Page 4 September 12, 2023 In supplement to WRRS response of August 11, 2023, the WRRS makes the following additional response with respect to the following enumerated requests and notes where documents were previously provided on August 11, 2023: [1] See documents produced August 11, 2023; see also meeting minutes from December 2019 and April 2023, available at https://www.wrrboard.org/board- trustees; [2] See documents produced August 11, 2023; [4] See documents produced August 11, 2023; see also meeting minutes from December 2019, available at https://www.wrrboard.org/board-trustees; [5] See documents produced August 11, 2023; [9] No responsive documents that can be described as “complaints” “alleging [an identified individual] was not performing his duties or alleging any wrongdoing on [an identified individual’s] part” were fund to exist; [10] See documents produced August 11, 2023; [11] See Board meeting minutes for the period of February 1, 2023 through June 27, 2023 available at https://www.wrrboard.org/board-trustees. The WRRS cannot produce executive session minutes that have not been approved for release; upon review of same in accordance with the Open Meeting Law and upon determination if any that such minutes may be released, the WRRS will supplement this response; [12] See enclosed draft minutes for July 2023 meeting, not yet approved; [13] Please see meeting minutes for June 2019, July 2019, August 2019, September 2019, October 2019, November 2019, and December 2019, available at https://www.wrrboard.org/oard-trustees.... Responding to requests 3 (as amended), 6 (as amended), 7, and 8 will require substantially over four (4) hours of staff time to compile, segregate, redact (if necessary), and reproduce responsive records. In accordance with G.L. c. 66, § 10(d), the WRRS will charge a reasonable fee for same based on the staff hour necessary to compile, segregate, redact (f necessary in accordance with law), and reproduce same. Such fee is calculated at $1750.00. Request 3 (as amended) and 6 (as amended) require the search, compilation, segregation and potential redaction of approximately 2200 emails based on an initial search and review of the email and phone accounts of [an identified individual]. Assuming approximately for the sake of making a reasonable estimate that each email is three pages in length, such search, compilation, segregation, and potential redaction will require the review of approximately 6600 pages of documents. While it is anticipated that the search for responsive documents in relation to Requests Nos. 7 and 8 may be duplicative of responsive documents to Request No. 3 (as amended) and No. 6 (as amended) in large respects, it is still anticipated that’s searches for such additional communications and documents as requested may yield several hundred more emails or electronic

Rachel Grimaldi SPR23/2034 Page 5 September 12, 2023 communications Using the same assumption of three pages per email, that is an estimated approximately 600 pages of additional documents. All told, the compilation, segregation, and potential redaction of the estimated 7400 pages, and assuming an aggressive rate of 100 pages per hour to search print, segregate, compile, redact (if necessary) same, the estimated time to complete such task is 74 hours. Subtracting four (4) hours from this number, the WRRS will charge a fee of $1750, which is equal to 70 hours multiplied the rate of $25.00 per hour in accordance with 66, § 10(d)…. Please also note, and as already previously noted in its August 11, 2023 response, that in responding to the present Request (as amended) or any clarified or further amended request for records, the WRRS intends to withhold records that are exempt from the definition of “public records” under G.L. c. 4, § 7, or are otherwise exempt from production on the bases of the attorney-client privilege, work product and other applicable privileges. In its August 31, 2023 supplemental response, the Department states: Mr. Sacco in his appeal states that he is not seeking privileged communications. That is exactly the point. There is no conceivable way for the WRRS to ensure that it does not produce privileged communications without reviewing, segregating, and redacting where necessary such communications. That it may take 74 hours to do so, is eminently reasonable as Mr. Sacco requests what the WRRS can estimate to be over 7000 pages of documents and communications. Further, Mr. Sacco’s argument that “it is 2023” and therefore should not take that much to identify documents using a search function ignores the fact that he is requesting records from at least thirteen (13) different email accounts alone, which by the terms of multiple requests, include both personal WRRS accounts. Putting aside the fact that different email platforms have different search functionality and therefore require different approaches with respect to each platform, his suggestion that “it is 2023” also ignores the fact that even as amended, Mr. Sacco’s amended Requests Nos. 3, 6, 7, and 8 are incredibly broad, without any subject matter limitation, other than those communications that “reference” or “discuss” Mr. Sacco (see, e.g., Nos. 6, 7, and 8). Indeed, in multiple instances, other than searching for terms “Michael” and “Sacco” – which searches will necessarily turn up thousands of hits given Mr. Sacco’s former relationship with the WRRS – there is no other way to locate the records requested (see, e.g., request Nos. 7 and 8)…. With respect to the executive session minutes Mr. Sacco references in his Appeal, it goes without saying that the Open Meeting Law prohibits the release of same until said minutes are released pursuant to that law. As has already been explained to Mr. Sacco in the WRRS’s supplemental response, upon such determination by

Rachel Grimaldi SPR23/2034 Page 6 September 12, 2023 the WRRS that the executive session minutes may be released, the WRRS would make such records public in accordance with relevant law. The WRRS reserves all rights with respect to same. Based on the Retirement System’s response, it is unclear why each email would be three pages in length. Also, although the Retirement System indicates that it would charge an hourly rate of $25, it is unclear whether the Retirement System has used the hourly rate of the lowest paid employee capable of performing the tasks. See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.07(2)(i). Additionally, it is unclear if the Retirement System is reviewing the documents to redact the records pursuant to certain exemptions. Under the Public Records Law, a fee may 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 Retirement System must clarify if redactions are required by law. As such, the Retirement System must provide further details regarding its fee estimate. I encourage Attorney Sacco and the Retirement System to communicate further in order to facilitate producing records efficiently and affordably. Attorney Sacco may wish to narrow his request. The Retirement System must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Open Meeting Law It appears part of Attorney Sacco’s appeal is related to the release of executive session minutes. Attorney Sacco asserts, “[the Retirement System] is also not producing executive session minutes in which I was discussed, arguing they have not yet been released.” This concern raises issues under the Open Meeting Law. See G. L.c. 30A, § 22(f). The authority to opine on Open Meeting Law matters, including executive session minutes, rests with the Open Government Division of the Office of the Attorney General (AGO). See G. L. c. 30A, § 23. Therefore, I decline to opine on the request pertaining to the executive session minutes. I advise the parties to consult with the AGO regarding the records pertaining to the executive sessions. Conclusion Accordingly, the Retirement System is ordered to provide Attorney Sacco with a response to his request, provided in a manner consistent with this order, 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 the response to this office at pre@sec.state.ma.us.

Rachel Grimaldi SPR23/2034 Page 7 September 12, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Michael Sacco, Esq. Kier Wachterhauser, Esq.