Ameya Gehi v. Department of Public Utilities (SPR 20241630)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 6, 2024 SPR24/1630 Amelia Gianetta, Esq. Records Access Officer Department of Public Utilities One South Station Boston, MA 02210 Dear Attorney Gianetta: On May 30, 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). 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, the Conservation Law Foundation, (“requestor”). G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On April 29, 2024, the requestor sought 12 categories of records concerning different subject matters. Subsequently, on May 13, 2024, the requestor narrowed the request to withdraw requests #1, 2, 6, 7, and 12, and further on May 14, 2024, the requestor narrowed the 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, the requestor “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.” The requestor further limited the request on May 20, 2024, to “only enforcement documents and inspection reports for items 1-7.” On May 22, 2024, the requestor received Item 7 and on May 30, 2024, the requestor received Batch 1 for Items 1-6. Previous Petitions This request was the subject of previous petitions from the Department. See SPR24/1425 Determination of the Supervisor of Records (May 16, 2024) and SPR24/1543 Determination of 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. SPR24/1630 Page 2 June 6, 2024 the Supervisor of Records (May 24, 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. In my May 24th determination, I found that the Department had met its burden to explain how the response could not be prudently completed without redaction or segregation. Petition for an Extension of Time (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 of Records (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. 36.06(4)(b). Request for Additional Time to Produce Records In its petition, the Department requests an extension of 10 business days and provides the following information in support of its request: Based on this modified request the Department conducted a preliminary search and collected approximately 306 enforcement records, 850 inspection reports and 20,383 estimate number of items through eDiscovery. According to this preliminary assessment, which is not inclusive of all the records requested by the requester, the Department has determined that it will require an extensive amount of time to complete the request. In light of the need to collect and examine the records, and the capacity of the Department to produce the records without an extension, the Department has established good

Amelia Gianetta, Esq. SPR24/1630 Page 3 June 6, 2024 cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The Department is granted an extension of 10 business days. Petition to assess fees – Agencies The Supervisor of Records (Supervisor) may approve a petition from an agency to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). 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). 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

Amelia Gianetta, Esq. SPR24/1630 Page 4 June 6, 2024 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 Department requests “that the Supervisor grant its petition to assess a reasonable fee.” Where I previously found that the Department had met its burden to explain how it’s response could not be prudently completed without redaction or segregation, I find it is unnecessary to opine on the Department’s May 30th request to assess fees for segregation and redaction. See SPR24/1425; see also SPR24/1543. Conclusion Accordingly, I find the Department has established good cause for a time extension of 10 business days as described above. Additionally, I find it is unnecessary to opine on the Department’s petition to assess a fee to charge for time spent segregating or redacting responsive record. Please note, the requestor 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: Conservation Law Foundation Ameya Gehi