Colman Herman v. Office of Consumer Affairs and Business Regulation (SPR 20241484)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 22, 2024 SPR24/1484 Clinton Dick, Esq. General Counsel Office of Consumer Affairs and Business Regulation 501 Boylston Street, Suite 5100 Boston, MA 02116 Dear Attorney Dick: On May 15, 2024, this office received your petition on behalf of the Office of Consumer Affairs and Business Regulation (Office/OCABR) 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 Office 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 May 1, 2024, Mr. Herman requested the following: [1.] Any and all communications between the Office of Consumer Affairs and Business Regulation and the Division of Banks for the period January 1, 2024 to the date of the request; [2.] Any and all communications between the Office of Consumer Affairs and Business Regulation and the Division of Insurance for the period January 1, 2024 to the date of the request; and [3.] Any and all communications between the Office of Consumer Affairs and Business Regulation and the Division of Telecommunications and Cable for the period January 1, 2024 to the date of the request. 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: 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

Clinton Dick, Esq. SPR24/1484 Page 2 May 22, 2024 (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. 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 Office requests “an extension of time to furnish copies of the requested records in the amount of 20 business days, should the requestor elect to pay the forthcoming fee estimates.” The Office argues the following in support of its request: OCABR has requested IT staff to conduct a preliminary search of emails to identify potentially responsive records to each of the three requests. That process is ongoing and is anticipated that work will require until at least May 24, 2024 to complete, but based on these efforts our initial estimate is that the search will return thousands of emails for each request, and potentially hundreds of thousands of responsive records for the three combined requests. . . . The proposed extension is warranted because the magnitude and complexity of the request will unduly burden the other responsibilities of OCABR such that we are unable to complete our production by the statutory deadline. As detailed [below], the request is overly broad and the requestor has declined our attempt to help narrow it. Accordingly, we anticipate the request will yield thousands, if not hundreds of thousands of responsive records. We also anticipate many of the emails will be exempt from disclosure based on the aforementioned exemptions, requiring segregation and redaction before they are produced. Given the large volume of records OCABR must compile, review and redact, this will impose an

Clinton Dick, Esq. SPR24/1484 Page 3 May 22, 2024 onerous burden on staff, which will have to devote its limited resources to produce the records for this request. I find that in light of the need to search for, collect, segregate and examine the records, the capacity of the Office to produce the request without the extension, and efforts undertaken by the Office in fulfilling the current request, the Office has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The Office 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 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).

Clinton Dick, Esq. SPR24/1484 Page 4 May 22, 2024 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). Petition to Assess Fees In its petition, the Office seeks permission to assess a fee for segregation and redaction. In support of its request, the Office argues the following: Each email can be located electronically but will require a manual review and may contain information that is exempt from disclosure or subject to being withheld pursuant to G.L. c. 4, § 7(26)(a), (b), (c), (d), (f), (h), (n) and (o), attorney client privilege, and other applicable exemptions. OCABR has an obligation to ensure that proper procedures are maintained to prevent the dissemination of information which is protected from disclosure by law. This requires careful review and segregation of records before they are produced to a requestor. Segregation and redaction of records often involves the application of multiple exemptions to the public records law to a single record. Some information is simultaneously protected by more than one exemption or different exemptions depending on context or the time of disclosure. The fee estimates will be provided for the segregation and redaction process as a whole, and in the view of undersigned, cannot be split up by exemption. Since some of the segregation and redaction process is required by law, OCABR is entitled to charge a fee for that portion and does not view a petition for such exemptions as a necessary prerequisite, but is included herein for completeness. In light of the Office’s petition, I find the Office 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 Office may assess a fee for the segregation and redaction of such exempt material. Conclusion Accordingly, I find the Office 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 Office may assess a fee for segregation and redaction. This office encourages Mr. Herman and the Office to continue to communicate directly in

Clinton Dick, Esq. SPR24/1484 Page 5 May 22, 2024 order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification to 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 records sought more efficiently and affordably). Any subsequent fee estimate from the Office must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). 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