Patricia Burke v. Department of Public Utilities (SPR 20232169)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 15, 2023 SPR23/2169 Mathieu Cunha, Esq. Records Access Officer Department of Public Utilities One South Station Boston, MA 02110 Dear Attorney Cunha: On September 11, 2023, this Office received your petition on behalf of the Department of Public Utilities (Department) seeking an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. See G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor. Id. On August 25, 2023, Patricia Burke, of MuckRock News, requested: Records from the MA Dept of Public Utilities and Department of Public Health, and between the two agencies, for any documentation of expert and/or public comment regarding health and safety concerns pertaining to “smart meters” or “advanced metering functionality,” or “AMI” dating from January 2014 to present, including but not limited to any consultant fees paid directly or indirectly to Gradient and/or [a named individual]. Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; 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

Mathieu Cunha, Esq. SPR23/2169 Page 2 September 15, 2023 (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Extension of Time to Produce Responsive Records In its September 1, 2023 petition, the Department states: The Department conducted a preliminary search and collected approximately 18,519 items. According to this preliminary assessment, which is not inclusive of all the records requested by the requester, the Department has determined that it will require an extensive amount of time to complete the request. There are thousands of comments, and segregating those which touch upon health and safety concerns has already proven a time- consuming task. The Department estimates it will expend slightly over 926 hours to compile the records… the Department respectfully requests that the Supervisor grant its petition for an extension of 20 business days to provide the responsive records to the requester I find that in light of the capacity of the Department to produce the records without the extension, the Department has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the Department an extension of 20 business days to furnish copies of records responsive to Ms. Burke’s request. See G. L. c. 66, § 10(c). To the extent possible, the Department must provide responsive records on a rolling basis. Petition to Assess Fees 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

Mathieu Cunha, Esq. SPR23/2169 Page 3 September 15, 2023 (Supervisor) under a petition under G. L. c. 66, § 10 (d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve an agency’s petition to allow the agency to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). The second prong of the test is whether the fee represents an actual and good faith representation by the agency to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates 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 four (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). Current Petition In its September 11th petition, the Department states that:

Mathieu Cunha, Esq. SPR23/2169 Page 4 September 15, 2023 [B]ecause the request encompasses nearly a decade’s worth of potential email correspondence, there are records that could be privileged, present a safety concern if released to the public, or reveal information concerning ongoing investigations or policy deliberations. All information falling within these categories is exempt from disclosure pursuant to G.L. c. 4, § 7(a), (d), (f) or (n). Some of the dockets referenced in the request are still open, representing ongoing policy deliberations or investigatory efforts which the Department may lawfully seek to keep private until such time as a formal decision has been made. Submissions by utilities of sensitive information, including the physical locations of substations, power lines, and other critical infrastructure, could be contained in correspondence. Finally, certain of the requested email communications are protected by attorney-client privilege because they are confidential communications between legal counsel and the client (i.e., the Department) undertaken for the purpose of obtaining legal advice or assistance on matters of law. Accordingly, the information must be segregated and redacted to secure the safety of persons and public places before the records are produced to the requester The Department further explained: Given that there are approximately 18,519 items that the Department must review and redact, this will impose an onerous burden on the Department, which will have to devote limited resources to review and redact these records… the Department respectfully requests that the Supervisor grant its petition to assess a reasonable fee. In light of the information provided in the Department’s petition, I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Department may assess a fee for the segregation and redaction of such exempt material. Conclusion As described above, I find that the Department has established good cause for a time extension of 20 business days. Further, I approve the Department’s petition to assess a fee for segregation and redaction. Please be advised, municipalities may not assess a fee for the first two hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. See G. L. c. 66, § 10(d)(iii). Please note, the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10(d)(iv)(4), 10A(c).

Mathieu Cunha, Esq. SPR23/2169 Page 5 September 15, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Patricia Burke