Laura H. Ortiz v. Office of the Attorney General (SPR 20232565)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 9, 2023 SPR23/2565 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 numerous public records for the time period: April 20 2022 through October 13, 2022 that included names, words, and phrases. Subsequently, on June 14, 2023, Ms. Ortiz modified her request “... to only request emails from dates of 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), SPR22/2783 Determination of the Supervisor of Records (December 19, 2022), and SPR23/1521 Determination of the Supervisor of Records (July 17, 2023). In my July 17, 2023 determination, I found that it was unclear whether the AGO requested a fee of $12.50 for a ½ hour of search time to be applied to Part 1 or Part 2 of the records request and I asked the AGO to clarify. The AGO responded on July 31, 2023. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR23/2565, was opened as a result. Fee estimate - agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. 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. SPR23/2565 Page 2 November 9, 2023 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). Current appeal In her appeal, Ms. Ortiz states that the fees are excessive and that the AGO’s June 29th response is not based on an actual estimate because the ASGO did not actually run a new search. The AGO’s July 31st fee estimate In its July 31, 2023 fee estimate, the AGO stated as follows: As to the Supervisor’s second question concerning the part of your request to which the additional search time applies, we confirm that the $12.50 search fee applies to Part 1 of your request, the only part of your request that changed, and refer you to the text of our June 29 Response, beginning at the bottom of page two (2): In 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, we need to run another search for potentially responsive records along the new parameters. … 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. Finally, please be advised that the Supervisor has opined that a requestor may not divide a request into multiple parts in order to circumvent the fees allowed by the Public Records Law. See SPR 19/1371 (July 25, 2019). In its June 29, 2023 response, the AGO stated: In 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, 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-

Lorraine A.G. Tarrow, Esq. SPR23/2565 Page 3 November 9, 2023 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. Conclusion Based on the AGO’s response, 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 for Part 1 and Part 2 of the record request. Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz