Alyssa Harrynanan v. Department of Public Utilities (SPR 20241543)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 24, 2024 SPR24/1543 Amelia Gianetta, Esq. Records Access Officer Department of Public Utilities One South Station Boston, MA 02210 Dear Attorney Gianetta: On May 20, 2024, this office received your petition on behalf of the Department of Public Utilities (Department) requesting 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, 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 requests #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).…” On May 16, 2024, Ms. Harrynanan “refined the search for item #7 (original #11) as records related to the September 18, 2018 letter from the Office of the Attorney General requesting that the DPU open a public investigation into National Grid; specifically related to the reviewing of National Grid’s compliance with odor call responses, emergencies and grade one leaks.” Ms. Harrynanan further limited her request on May 20, 2024, to “only enforcement documents and inspection reports for items 1-7.” Previous Petition This request was the subject of a previous petition from the Department. See SPR24/1425 Determination of the Supervisor of Records (May 16, 2024). In my May 16th determination, I found that the Department had established good cause for a time extension of 10 business days and to assess a fee for the segregation and redaction of the responsive records. 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. SPR24/1543 Page 2 May 24, 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. 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.

Amelia Gianetta, Esq. SPR24/1543 Page 3 May 24, 2024 32.06(4). 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: [T]he request concerns multiple regulations which includes enforcement records, inspection reports, and correspondences, there is a large amount of personal information and critical infrastructure. This includes the 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 will 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 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