Joe Thomas v. Department of Public Utilities (SPR 20240547)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 27, 2024 SPR24/0547 Mathieu Cunha, Esq. Records Access Officer Department of Public Utilities One South Station Boston, MA 02210 Dear Attorney Cunha: On February 21, 2024, this office received your petition on behalf of the Department of Public Utilities (Department) seeking an extension of time to produce records and 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 Department furnished a copy of the petition to the requestor, Joe Thomas. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On February 6, 2024, Mr. Thomas requested “…[a]ny email correspondence dated between May 1, 2023 to February 6, 2024 which includes [identified email addresses] anywhere, whether in the To, From, cc:, bcc, or subject fields, or in the body of the email or the email domain., and is to or from or copies one or more of the following [identified individuals].” In an email to the Department on February 21, 2024, Mr. Horner, on behalf of Mr. Thomas, modified the February 6, 2024 request. Subsequently, on February 23, 2024, the Department provided a modified petition. 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; 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. SPR24/0547 Page 2 February 27, 2024 (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. 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. 32.06(4)(b). Request for Additional Time to Produce Responsive Records In its petition, the Department “requests the Supervisor grant its petition for an extension of 20 business days to provide the responsive records to the requester.” The Department provides the following information supporting its request: [The Department] is not able to provide [you] with these records in the statutory term of ten (10) business days because the magnitude of the request unduly burdens the other responsibilities of the Department. … [The] request seeks voluminous records, many of which will be redacted and withheld pursuant to Exemption (d) of the Public Records Law. G. L. c. 4, 7 § (d). Additionally, some of the records sought involve attorney-client communications and may be withheld. As a result of the possible redactions, the review will be extensive, and the Department is seeking a 20-day extension to provide records responsive to [your] request. In light of the need to collect, segregate and examine the records, as well as the capacity of the Department to produce the records without an extension, the Department has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The Department is granted an extension of 20 business days.

Mathieu Cunha, Esq. SPR24/0547 Page 3 February 27, 2024 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, § 10(d)(iv). It is my understanding 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.

Mathieu Cunha, Esq. SPR24/0547 Page 4 February 27, 2024 32.06(4). Current Petition In its petition, the Department requests permission to assess an hourly rate of $25.00 per hour “…which represents the lowest hourly rate of a person capable of compiling, segregating, and redacting these records.” In support of its request, the Department provides the following information: [I]n response to the modification, [The Department] has conducted a preliminary search and collected approximately 280 items. The request seeks recent communications from senior department officials responsible for high-level decision making. Consequently, at least some of the records relate to nascent policy being developed by the Department. This would make those records exempt from disclosure pursuant to G. L. c. 4, § 7(d). … [S]ome of these conversations occurred between the Commission and the Department’s legal division. Those 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. In light of 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. Additionally, to the extent the responsive records contain the exempt information described above, the Department may assess a fee for segregation and redaction. Please note, Mr. Thomas 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. SPR24/0547 Page 5 February 27, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Joe Thomas