Laura H. Ortiz v. Department of Public Utilities (SPR 20240671)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 8, 2024 SPR24/0671 Mathieu Cunha, Esq. Records Access Officer Department of Public Utilities One South Station Boston, MA 02210 Dear Attorney Cunha: On March 4, 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, Laura Ortiz. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On February 16, 2024, Ms. Ortiz requested the following records: [1] Emails that discussed [Ortiz’s] records request and/or the investigation of the July 18, 2023 fire that occurred at the Massachusetts State House, 24 Beacon Street, Boston MA 02108, Sent to/from DPU Email Addresses: . . . [;] [2] [Any] Final Reports by DPU or CC'd to DPU of any findings and/or conclusions of the July 18, 2023 fire that occurred at the Massachusetts State House, 24 Beacon Street, Boston, MA 02108[;] [3] Any letters or official correspondence to/from Eversource including Eversource Energy and/or National Grid regarding the July 18, 2023 fire that occurred at the Massachusetts State House, 24 Beacon Street, Boston, MA 02108 and their electric utility company (that have not already been produced to [Ortiz]). 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 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. SPR24/0671 Page 2 March 8, 2024 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. 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 complexity of the request unduly burdens the other responsibilities of the Department. … [R]ecords Access Officers are also Department staff attorneys, and thus are in a unique position within the Department, acting both to process requests directly for the public and as lawyers working for the Department. As a result of this dual role, some of the responsive records contain communications concerning legal advice sought by Department staff. The Department must be deliberate in how it fulfills a request which could potentially cause a breach of the attorney-client privilege. As a result of these possible redactions, the review will be extensive, and the Department is seeking a 20-day extension of time to properly records responsive to [your] request.

Mathieu Cunha, Esq. SPR24/0671 Page 3 March 8, 2024 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. 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

Mathieu Cunha, Esq. SPR24/0671 Page 4 March 8, 2024 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 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: [B]ecause the focus of the request concerns the public records request work done by attorneys in the Department, extensive legal review will be required to limit any potential breaches of the attorney-client privilege. Certain communications are protected by attorney-client privilege because they are confidential communications between legal counsel and the client undertaken for the purpose of obtaining legal advice or assistance on matters of law. … [R]ecords Access Officers are also Department staff attorneys, and thus are in a unique position within the Department, acting both to process requests directly for the public and as lawyers working for the Department. As a result of this dual role, some of the responsive records contain communications concerning legal advice sought by Department staff. The Department must be deliberate in how it fulfills a request which could potentially cause a breach of the attorney-client privilege. As a result of these possible redactions, the review will be extensive, and the Department is seeking a 20-day extension of time to properly records responsive to [your] request. Please be advised, records custodians may assess fees for time spent segregating or redacting records where such segregation or redaction is required by law. See 950 C.M.R. 32.07(2)(d) (stating that fee for segregation or redaction is permissible when approved by Supervisor or when required by law (emphasis added)). Where the Department only seeks to assess fees pursuant to attorney-client privilege which is required by law, I find it unnecessary to opine on whether the Department may assess fees for segregating and redacting the records. Conclusion As described above, I find that the Department has established good cause for a time extension of 20 business days. Additionally, I find it is unnecessary to opine on the Department’s petition for permission

Mathieu Cunha, Esq. SPR24/0671 Page 5 March 8, 2024 to charge for time spent segregating or redacting responsive records. Accordingly, I will consider this matter closed. Please note, Ms. Ortiz 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: Laura Ortiz