Bird Guess v. Human Resources Division (SPR 20240675)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 12, 2024 SPR24/0675 Michele M. Heffernan, Esq. Records Access Officer Human Resources Division 100 Cambridge Street, Suite 600 Boston, MA 02114 Dear Attorney Heffernan: On March 5, 2024, this office received your petition on behalf of the Human Resources Division (Division) seeking an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, the Division furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On February 26, 2024, Bird Guess requested “a copy of each [executive branch state agency’s] voluntary affirmative action plan.” 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; (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. 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

Michele M. Heffernan, Esq. SPR24/0675 Page 2 March 12, 2024 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. 36.06(4)(b). Current Petition In its March 5th petition, the Division states that “it is expected that it will take about 30 days to compile the response.” Based on the information provided in the Division petition, I find that the Division has not met its burden to establish good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)- (iv). Therefore, I am unable to grant additional time. Petition to Assess Fees – Agencies 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). 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.

Michele M. Heffernan, Esq. SPR24/0675 Page 3 March 12, 2024 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 seeks permission “to charge the requestor for time spent segregating and redacting records.” In support of its request, the Division explains: There are 80 affirmative action plans that are responsive to this request. Each plan is approximately 50 pages. Each plan will have to be reviewed and personal/identifying information may have to be redacted. It is anticipated that it will take an hour to search for, download, review, and redact each plan. Subsequently, in an email to Mr. Guess and this office dated March 11, 2024, the Division indicates that the information is necessary to be redacted pursuant to Exemption (c) of the Public Records Law: HRD has not made the agency affirmative action plans, created pursuant to EO 592, available on its website. Plans include detailed information about the positions and the incumbents. Redactions are necessary for categories that have incumbents with numbers are so small that the identity of the individual would be easily discernable. Redactions are pursuant to MGL c. 4 sec.7(26)(c). An example would be an agency with one employee classified as a Manager “M IX”, who is identified as having a disability…. All plans would need to be reviewed in order to ensure the appropriate redactions take place.

Michele M. Heffernan, Esq. SPR24/0675 Page 4 March 12, 2024 Based on the Division’s petition and subsequent correspondence, 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 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 Division may assess a fee for the segregation and redaction of such exempt material. Conclusion Accordingly, based on the information provided in the Division’s petition, I find that the Division has not met its burden to establish good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)- (iv). Therefore, I am unable to grant additional time. To the extent possible, the Division must provide records on a rolling basis. Additionally, to the extent the responsive records contain the exempt information described above, the Division may assess a fee for segregation and redaction. Please note, Bird Guess 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(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Bird Guess