Colman Herman v. Office of the Secretary of the Commonwealth - Administrative Services Division (SPR 20240804)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 22, 2024 SPR24/0804 Valerie Connolly Records Access Officer Office of the Secretary of the Commonwealth One Ashburton Place, Room 1719 Boston, MA 02108 Dear Ms. Connolly: On March 15, 2024, this office received a petition on behalf of the Public Records Division of the Secretary of the Commonwealth (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); see also 950 C.M.R. 32.06(4). As required by law, I understand that the Division furnished a copy of this petition to the requestor, Colman Herman. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On March 2, 2024, Mr. Herman requested “copies of any and all compliance emails that [a named individual] sent out and the responses to them for the period January 1, 2024 to the present.” In multiple emails to this office on March 17 and March 20, 2024, Mr. Herman objects to the Division’s petition. Petitions 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 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

Valerie Connolly SPR24/0804 Page 2 March 22, 2024 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) shall 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 Division requests “a one-time extension of 20 business days to produce a response to the requester.” In support of its request, the Division argues the following: A staff member of the Public Records Division conducted a preliminary search and there are over 6,800 potentially responsive email correspondences with on average one (1) to two (2) pages for each email correspondence. Therefore, on average between 6,800 and 13,600 pages in total. . . . This Division estimates that it will take one (1) minute to review each email correspondence to determine whether the document, or portion(s) of the document, are exempt from disclosure and/or required by law to be segregated or redacted. Based on the information provided in the Division’s petition, I find that in light of the need to segregate and examine the records, the capacity of the Division to produce the request without the extension, and efforts undertaken by the Division in fulfilling the current request, the Division has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The Division is granted an extension of 20 business days. 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

Valerie Connolly SPR24/0804 Page 3 March 22, 2024 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 – 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 assess fees for time spent segregating or redacting the responsive records. The Division argues the following in support of its request: [D]ue to the substance of the request, [the Division] believe[s] that many, if not all, of the responsive records will require redaction under Exemption (c) of the Public Records Law. Upon review, many of the email correspondences may

Valerie Connolly SPR24/0804 Page 4 March 22, 2024 contain personal email addresses and personal phone numbers which will need to be redacted pursuant to G. L. c. 4, § 7 (26)(c) (privacy). Given the potential volume of material that must be reviewed and potentially segregated or redacted, in accordance with M.G.L. c. 66, § 10(b) and 950 C.M.R. 32.07(2), [the Division has] determined that a fee is necessary to process this production. As a result, this Division will need to review these records and make necessary redactions before producing them. In light of the Division’s petition, 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, I find the Division has established good cause for a time extension of 20 business days as described above. 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, Mr. Herman 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: Colman Herman