Alexander R. Zwillinger, Esq. v. Office of Consumer Affairs and Business Regulation (SPR 20233101)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 29, 2023 SPR23/3101 Clinton Dick, Esq. Records Access Officer Office of Consumer Affairs and Business Regulation 501 Boylston Street, Suite 5100 Boston, MA 02116 Dear Attorney Dick : On December 22, 2023, this office received your petition on behalf of the Office of Consumer Affairs and Business Regulation (Office) seeking permission to charge for time spent segregating or redacting responsive records under G. L. c. 66, § 10(d)(iv). As required by law, the Office furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On December 8, 2023, Alexander Zwillinger, Esq., of Kenney & Sams, P.C., requested: All records relating to renovations, construction or building at 1432 Broadway, Hanover, MA from 2016 to the present including, but not limited to: [1.] Communications with any of the following: [a.] [three named individuals]; [b.] Representatives of Great Day Improvements, LLC; [c.] Representatives of the Town of Hanover including but limited to [three named individuals]. [2.] Complaints, requests, or demands for arbitration; [3.] Submissions, supporting materials, or transcripts pertaining to any OCABR arbitration; and [4.] Decisions, judgments, awards or disbursements. 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). 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

Clinton Dick, Esq. SPR23/3101 Page 2 December 29, 2023 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). 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 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 December 22nd petition, the Office seeks “approval to assess a fee… for costs associated with responding to” Attorney Zwillinger’s request. In support of its request, the Office states:

Clinton Dick, Esq. SPR23/3101 Page 3 December 29, 2023 OCABR has conducted a search and identified approximately 957 emails and 259 attachments (it is estimated that the average number of pages per attachment is 10). Each email can be located electronically but will require a manual review. OCABR estimates that it will require approximately 33 hours to segregate the emails based on an estimate of 90 seconds per email and 90 seconds per attachment. After subtracting the first four hours, this equals 29 hours of work. The Office further explains the following regarding potential segregation and redaction of information under Exemption (c) of the Public Records Law: 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 in the public records law, G. L. c. 4, § 7(26)(c)[.]… Therefore, the file must be reviewed to ensure that personal identifying information is not compromised. Conclusion In light of the Office’s petition, I find the Office 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 Office may assess a fee for the segregation and redaction of such exempt material. Please note, Attorney Zwillinger 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: Alexander Zwillinger, Esq.