Kristen Field v. Department of Public Utilities (SPR 20232194)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 19, 2023 SPR23/2194 Mathieu Cunha, Esq. Records Access Officer Department of Public Utilities One South Station Boston, MA 02110 Dear Attorney Cunha: On September 13, 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 29, 2023, Kristen Field requested, “[a]ny and all records, documents, photographs, or recordings related in any way to the Department of Public Health’s investigation” of an incident on September 2, 2021. 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; (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. 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. SPR23/2194 Page 2 September 19, 2023 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 13, 2023 petition, the Department states: The Department conducted a preliminary search and collected approximately 6119 items. According to this preliminary assessment, the Department has determined that it will require an extensive amount of time to complete the request. The Department estimates it will expend 306 hours to compile the records. The Department estimates, conservatively and in good faith based on past experience, that we will expend an average of three minutes to review each item and to perform any necessary redactions of the records… the Department respectfully requests that the Supervisor grant it 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. Field’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 (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).

Mathieu Cunha, Esq. SPR23/2194 Page 3 September 19, 2023 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 13th petition, the Department states: Because the focus of the request touches on an ongoing investigation into an incident in which a member of the public died, extensive review will also be required. Some of the correspondence involving attorneys in the Department’s Pipeline Safety Division are privileged work product, 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 protect the relationship between the Department and its attorneys. Safety and accident reports

Mathieu Cunha, Esq. SPR23/2194 Page 4 September 19, 2023 can include personal information, including intimate personnel or medical information relating to injuries sustained during an accident. Due to the nature of gas lines as critical infrastructure with the capacity for catastrophic failure, and because these incident reports by their very nature relate to such failures, some documents may require redactions in order to protect public safety. Finally, as previously stated the investigation for this incident remains open and ongoing. Consequently, the Department may wish to limit information released to the public until it has properly vetted the results of the investigation. All information falling within these categories is exempt from disclosure pursuant to G.L. c. 4, § 7(a), (c), (f), or (n). The Department further explained: Given that there are approximately 6119 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). Sincerely, Manza Arthur Supervisor of Records cc: Kristen Field