Amie Lindenboim v. Division of Occupational Licensure (SPR 20232849)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 4, 2023 SPR23/2849 Greer Spatz-Croxford, Esq. General Counsel Division of Occupational Licensure 1000 Washington Street Boston, MA 02118 Dear Attorney Spatz-Croxford: On November 27, 2023, this office received your petition on behalf of the Division of Occupational Licensure (Division) requesting permission to charge for time spent segregating or redacting responsive records. 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 Division furnished a copy of the petition to the requestor, Amie Lindenboim. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On November 14, 2023, Ms. Lindenboim requested “all documents, spreadsheets, screenshots, email, and Outlook calendar entries created, edited, or saved by [an identified individual] that were last saved (1) in her Outlook email account in various folders within that application; and (2) on her state-issued laptop’s locally stored files from April 10, 2023 to November 10, 2023…” Petition to assess fees – Agencies A fee shall not 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. 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 a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 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

Greer Spatz-Croxford, Esq. SPR23/2849 Page 2 December 4, 2023 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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 petition, the Division requests permission to assess fees “for the search, segregation and redaction process…” In support of its request, the Division provides the following information: [The Division] conducted a search and identified approximately 14,739 documents responsive to this request. … [A] number of these responsive documents will contain potentially privileged materials and materials exempt from disclosure under the Public Records Law and other statutes, including without limitation, G. L. c. 4, § 7(26)(a), (c), (f), and attorney-client privilege. …

Greer Spatz-Croxford, Esq. SPR23/2849 Page 3 December 4, 2023 Statutory Exemption (G. L. c. 4, § 7(26)(a)) – The documents requests contain or may contain information exempt from disclosure under G. L. c. 6, § 167, et al. … Privacy Exemption (G. L. c. 4, § 7(26)(c)) - The documents requested contain or may contain personal identifying information, such as non-public mailing addresses, social security numbers, email addresses, phone numbers, dates of birth, and other information that is exempt from disclosure pursuant to the privacy exemption. … Investigatory Materials Exemption (G. L. c. 4, § 7(26)(f)) - The documents requested may include complainant names and materials related to cases pending before the Board that will require redaction under this exemption. The Investigatory Materials Exemption exempts from disclosure investigatory materials that if disclosed would so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. … Attorney-Client Privilege - Some of the records that may be responsive to the request are communications between Division staff and attorneys or amongst attorneys. These communications are subject to attorney-client privilege and are exempt from disclosure under the Public Records Law to the extent they consist of communications about legal matters between counsel and client, or between attorneys representing clients with a common interest. These communications were made in confidence for the purpose of obtaining or providing confidential legal advice, did not include any person who was not an employee or attorney within the Division, and were not otherwise disclosed to a third party. Accordingly, the privilege has not been waived. Based on the information provided in its fee petition, I find the Division has met its burden to explain how given the nature of the responsive records, the request could not prudently be completed without segregation or redaction. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, I find the Division has met its burden to explain how the response could not be prudently completed without segregation or redaction. To the extent the responsive records contain the exempt information as described above, the Division may assess a fee for the segregation and redaction of such exempt material. Further, I encourage the parties to communicate further to enable the Division to provide records in an efficient and affordable manner. Please note, Ms. Lindenboim 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).

Greer Spatz-Croxford, Esq. SPR23/2849 Page 4 December 4, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Amie Lindenboim