Alyssa Harrynanan v. Department of Public Utilities (SPR 20241425)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 16, 2024 SPR24/1425 Amelia Gianetta, Esq. Records Access Officer Department of Public Utilities One South Station Boston, MA 02210 Dear Attorney Gianetta: On May 10, 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. See 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, Alyssa Harrynanan, of Conservation Law Foundation. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On April 29, 2024, Ms. Harrynanan requested 12 categories of records concerning different subject matters. Subsequently, on May 13, 2024, Ms. Harrynanan narrowed her request to withdraw request numbers 1, 2, 6, 7, and 12, and further on May 14, 2024, Ms. Harrynanan narrowed her request again to “add the following search terms to assist with finding records relating to what ‘promptly’ means under 49 C.F.R. § 192.703(c), as well as what ‘immediate repair and continuous action’ means under 49 C.F.R. § 192.1001 (#4 and #5 of the records request, respectively)…” 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; 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

Amelia Gianetta, Esq. SPR24/1425 Page 2 May 16, 2024 (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 submits “a one-time extension of time to produce a response to the requester…seeking 10 business days.” The Department provides the following information supporting its request: [T]he Department conducted a preliminary search and collected approximately 1,300 enforcement records and inspection reports and 27,667 items through eDiscovery. … [G]iven that there are approximately 29,000 items that the Department must review and redact, this will impose an onerous burden on the Department, which will have to devote limited resources to review and redact these records. … [G]iven the volume of information requiring review, the Department shall deliver documents on a rolling basis in batches spanning two years each for a total of 5 batches; the first batch shall be enforcement documents and inspection reports from the April 29, 2024 to January 1, 2022. 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)-(iv). The Department is granted an extension of 10 business days.

Amelia Gianetta, Esq. SPR24/1425 Page 3 May 16, 2024 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 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.

Amelia Gianetta, Esq. SPR24/1425 Page 4 May 16, 2024 Current Petition In its petition, the Department requests permission “to assess a reasonable fee for the production of records…” In support of its request, the Department provides the following information: [B]ecause the focus of the request concerns multiple regulations which includes enforcement records, inspection reports, and correspondences the records contain personal information and critical infrastructure information. This information includes names, email addresses, cell phone numbers, and account numbers of complainants which are exempt from disclosure pursuant to G.L. c. 4, § 7(c). Additionally, critical infrastructure redactions include pipe size, length, depth, serial numbers, and joint measurements pursuant to G.L. c. 4, § 7(n). It may also include operating pressure information, number designations for manholes and explosive limit information. Based on the information provided in its fee petition, I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without segregation or redaction. See G. L. c. 66, § 10(d)(iv). Conclusion As described above, I find that the Department has established good cause for a time extension of 10 business days. Accordingly, I find the Department has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Department may assess a fee for segregation and redaction. Further, I encourage the parties to communicate further to enable the Department to provide records in an efficient and affordable manner. Please note, Ms. Harrynanan 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: Alyssa Harrynanan