Laura H. Ortiz v. Department of Public Utilities (SPR 20240747)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 25, 2024 SPR24/0747 Mathieu Cunha, Esq. Records Access Officer Department of Public Utilities One South Station Boston, MA 02210 Dear Attorney Cunha: I have received the petition of Laura Ortiz appealing the response of the Department of Public Utilities (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 16, 2024, Ms. Ortiz requested the following records: [1.] Emails that discussed [a specific] 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 [specified] DPU Email Addresses... [2.] ... 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... Previous Petition This request was the subject of a previous petition from the Department. See SPR24/0671 Determination of the Supervisor of Records (March 8, 2024). In my March 8th determination, I granted the Department a time extension of 20 business days, and found it was unnecessary to opine on the Department’s request for permission to charge for time spent segregating or redacting records. Concurrent with its petition, the Department provided Ms. Ortiz with a fee estimate on March 4, 2024, and provided a further response on March 7, 2024. Objecting to the fees, Ms. Ortiz appealed, and this case was opened as a result. 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. SPR24/0747 Page 2 March 25, 2024 The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 Appeal In her appeal petition, Ms. Ortiz indicates that she “no longer seek[s] Part 2 or Part 3 of the ... public records request.” Further, she contends that the Department provided her with an “excessive fee estimate.”

Mathieu Cunha, Esq. SPR24/0747 Page 3 March 25, 2024 The Department’s March 4th and March 7th Responses In its March 4, 2024 response, the Department provides a fee estimate totaling $143.75. Additionally, in its March 7, 2024 response, the Department explains that a set of March 5, 2024 modifications, provided by Ms. Ortiz, “do not meaningfully reduce the amount of segregation and redaction required, and thus the Department’s initial fee estimate is appropriate.” In support of its fee estimate, in its March 4th response, the Department provides descriptions of approximately 11 emails chains, and explains that “some of the responsive records contain communications concerning legal advice sought by Department staff,” and that “certain communications are protected by attorney-client privilege.” Additionally, the Department argues the following in support of its fee estimate: The Department has determined that a charge of $143.75 is necessary to process production, representing the Departments reasonable reproduction costs associated with [the] request: $143.75 for 9.75 hours of employee time already expended, excluding the first four hours. Due to the unpredictability of the ongoing review, [the Department] currently [is] asking only for time already expended. Although the Department indicates that it is not charging for the first four hours of work, and that redactions are required by law under the attorney-client privilege, based on the information provided in the Department’s March 4th and March 7th responses, it is unclear why the Department requires the amount of time indicated above in order to respond to the request. The Department must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, in its response, the Department has not stated whether the hourly rate being used is equal to or less than that of the lowest paid employee with the necessary skills to perform the tasks. The Department must clarify this. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). This office encourages Ms. Ortiz and the Department to continue to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate. Conclusion Accordingly, the Department is ordered to provide Ms. Ortiz with a response to the

Mathieu Cunha, Esq. SPR24/0747 Page 4 March 25, 2024 request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz