Laura H. Ortiz v. Department of Public Utilities (SPR 20241155)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 1, 2024 SPR24/1155 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... On March 5 and March 19, 2024, Ms. Ortiz modified her request to exclude numerous communications. Previous Appeal and Petition This request was the subject of a previous appeal and a petition from the Department. See SPR24/0671 Determination of the Supervisor of Records (March 8, 2024) and SPR24/0747 Determination of the Supervisor of Records (March 25, 2024). In my March 25th determination, I found that the Department must revise its fee estimate or provide further explanation of how the fees are consistent with the Public Records Law. Subsequently, the Department responded on April 8, 2024. Objecting to the fees, Ms. Ortiz further appealed, and this case was opened as a 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. SPR24/1155 Page 2 May 1, 2024 result. 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). The Department’s April 8th Response In its April 8, 2024 response, the Department provides a total fee estimate of $143.75 and provides the following explanation in support of its estimate:

Mathieu Cunha, Esq. SPR24/1155 Page 3 May 1, 2024 Determining whether a given record can be redacted pursuant to the attorney- client privilege is legal work, which needs to be performed by a licensed attorney. Based on the tasks involved, the lowest paid employees with necessary skills to perform the tasks are Department staff attorneys. The hourly rate being used, $25 per hour, is thus significantly less than that of the lowest paid employee with the necessary skills to perform the tasks. . . . At 5 hours and 45 minutes of time (9.75 minus the first four hours), assessed at $25 per hour, the total fee comes out to $143.75 (5.75 x $25 = $143.75). . . . [T]he Department charged fees for identifying, segregating, and redacting records. The Department spent 240 minutes to identify 226 potentially responsive records spanning 1403 pages, at a rate of 0.17 minutes per page. The Department then spent 180 minutes to segregate and delete duplicative records, processing 642 pages of material at a rate of 0.28 minutes per page. Finally, the Department redacted 125 pages of responsive records in 165 minutes at the rate of 1.32 minutes per page. On March 5, 2024, and March 19, 2024, Ms. Ortiz modified her request to exclude certain privileged communications. The Department complied with this modification by excluding the privileged information through redactions. The records downloaded from Everlaw are email chains that include every email in the chain that came before it. For that reason, removing an email is not as simple as segregating it from the other responsive records. The Department would have to either alter the records in order to do so, or redact them. Consequently, these modifications do not reduce the amount of records redacted. In its previous March 4, and March 7, 2024 responses, the Department indicated 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 its April 8th response, where the Department has explained the tasks involved and what each task entails, and has also explained that the hourly rate being used is that of the lowest paid employee with the necessary skills to perform the tasks, I find the Department has met its burden to explain how it has provided a reasonable fee estimate for the production of records responsive to this request. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). Conclusion As set forth above, I find the Department has met its burden in responding to Ms. Ortiz’s request at this time. Any further revision to the request would result in the requirement to issue a revised fee estimate. Accordingly, I will consider this administrative appeal closed.

Mathieu Cunha, Esq. SPR24/1155 Page 4 May 1, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz