Deirdre Fernandes v. Executive Office of Housing and Livable Communities (SPR 20242052)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 25, 2024 SPR24/2052 Adrian Walleigh, Esq. Counsel/Public Records Officer Executive Office of Housing and Livable Communities 100 Cambridge Street Boston, MA 02114 Dear Attorney Walleigh: I have received your petition on behalf of the Executive Office of Housing and Livable Communities (Office) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, the Office furnished a copy of this petition to the requestor. Id. On May 30, 2024, Deirdre Fernandes, of the Boston Globe, requested “the following documents related to the state’s contract with Spinelli’s to provide food to homeless shelters in Massachusetts”[:] [1.] . . . all communications, including emails and texts, about Spinelli’s from January 1, 2023 to present[;] [b.] . . . any communication to and from agency officials about Spinelli’s including, but not limited to, the cost of the food, complaints about the quality of the food at shelters, concerns about the shelter contract and of food waste[;] [c.] . . . any communication between EOHLC officials to other state agencies, town officials, providers and legislators. On July 8, 2024, Ms. Fernandes narrowed her request to, “all electronic correspondence concerning [‘]Spinelli’s[’] from August and September 2023.” 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). 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

Adrian Walleigh, Esq. SPR24/2052 Page 2 July 25, 2024 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). 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). Current Petition In its July 18th petition, the Office requests “approval to assess a fee . . . for costs associated with responding to a public records request.” The Office explains that it “does not have an employee with such necessary skill who is paid less than $25.00 per hour” but indicates

Adrian Walleigh, Esq. SPR24/2052 Page 3 July 25, 2024 that, “[c]onsistent with the Public Records Law, the first four (4) hours of personnel work are free of charge; thereafter an hourly rate of $25.00 will be charged.” Moreover, in addition to charging for segregation and redaction required by law under Exemption (a) and attorney-client privilege, the Office argues the following in support of its request to charge for segregation and redaction under Exemptions (c) and (n): [Exemption (c):] The documents requested contain or may contain personal identifying information, such as non-public mailing addresses, email addresses, phone numbers, and other information that is exempt from disclosure pursuant to the privacy exemption. [Exemption (n):] The documents requested contain or may contain information that, if released, will jeopardize public safety. 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 that, to the extent the responsive records contain the exempt information described above, the Office may assess a fee for segregation and redaction. Please note, Ms. Fernandes 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: Deirdre Fernandes Jessica L. Ellis, Esq.