Colman Herman v. Executive Office of Housing & Economic Development (SPR 20241785)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 1, 2024 SPR24/1785 Robert McGovern, Esq. Records Access Officer Executive Office of Housing & Economic Development 1 Ashburton Place Boston, MA 02114 Dear Attorney McGovern: I have received the petition of Colman Herman appealing the response of the Executive Office of Housing & Economic Development (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 27, 2024, Mr. Herman requested, “…copies of any and all internal and external communications related to [an identified individual] for the period January 1, 2024 to the present. Communications include, but are not limited to, emails, text messages, letters, memoranda, faxes, and/or notes….” Following a telephone conference between Mr. Herman and the Office on May 7, 2024, Mr. Herman modified his request to include, “…only those internal and external communications pertaining to [an identified individual]’s resignation from his position…at MassDevelopment....” Previous Appeal The request was the subject of a previous appeal. See SPR24/1435 Determination of the Supervisor of Records (May 28, 2024). In my May 28th determination, I found that the Office did not meet its burden to withheld records under Exemption (c) of the Public Records Law, as well as the attorney-client privilege. The Office responded with a fee estimate on June 11, 2024. Unsatisfied with the Office’s response, Mr. Herman petitioned this office and this appeal, SPR24/1785, was opened as a 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 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

Robert McGovern, Esq. SPR24/1785 Page 2 July 1, 2024 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. See 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 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. 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). 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Office’s June 11th response In its June 11, 2024 response, the Office re-asserted that the records were withheld pursuant to Exemption (c) of the Public Records Law and the attorney-client privilege and provided a fee estimate for preparation of a privilege log.

Robert McGovern, Esq. SPR24/1785 Page 3 July 1, 2024 Current Appeal In his appeal, Mr. Herman states, “[in the Office]’s June 11, 2024 response… the Office fails to address the [Exemption C issues from the previous appeal]…. [and] attempts to charge me the outrageous fee of $100 to provide the privilege log you ordered….” The Office’s June 11th fee estimate In its June 11, 2024 fee estimate, the Office asserted that preparation of a privilege log would require approximately 8 hours of attorney time and cited a fee estimate of $100.00 as follows: The preparation of a privilege log will require approximately 8 hours of attorney time that was not accounted for in our original response to your request. Accordingly [the Office] has determined a fee in the amount of $100.00 is necessary for the costs associated with producing the privilege log. … [T]he administrative burden on [the Office] will primarily arise from the need to prepare a privilege log for dozens of records that are being withheld on the basis of attorney-client privilege. [Office] counsel has estimated it will take up to 8 hours of attorney time to prepare and review the privilege log. The hourly rates of the attorneys who will prepare and review the privilege log are significantly more than $25, but we have limited our fee estimate to 4 hours of work at the rate of $25 per hour, which is the maximum rate permitted by the Public Records Law. Although the Office has estimated that the process of reviewing and preparing the privilege log for production will take 8 hours of employee time, it is unclear how the Office requires this amount of time. Further, based on the Office’s response, it is unclear how it may assess a fee “. . . to prepare and review the privilege log.” The Office must explain how such tasks constitute searching, compiling, segregating, redacting, or reproducing the records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The Office must clarify this matter. For the reasons discussed above, I find the Office must revise its fee estimate or provide further explanation of how the $100.00 fee assessed in its June 11th estimate is consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Office is ordered to provide Mr. Herman with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Mr. Herman may appeal the Office’s response within ninety days. See 950 C.M.R. 32.08(1).

Robert McGovern, Esq. SPR24/1785 Page 4 July 1, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman