Denise Leboeuf v. Massachusetts Commission Against Discrimination (SPR 20242228)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 13, 2024 SPR24/2228 Ruthy Barros Records Access Officer Massachusetts Commission Against Discrimination One Ashburton Place, Suite 601 Boston, MA 02108 Dear Ms. Barros: On August 6, 2024, this office received your petition on behalf of the Massachusetts Commission Against Discrimination (Commission) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, the Commission furnished a copy of this petition to the requestor. Id. On July 30, 2024, Denise Leboeuf requested “[e]very single email sent . . . and received by [three identified Commission employees] from April 5, 2024, through to today. . . . I’d like a print out of every single email sent and received by those three [identified employees] from April 5 through to today[.]” Please note, in an email to this office on August 8, 2024, Ms. Leboeuf states, “I’m confused about why it would be so expensive and so time-consuming to go into [the three identified Commission employees’] email . . . and select ALL and copy ALL to a flash drive.” 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 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

Ruthy Barros SPR24/2228 Page 2 August 13, 2024 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 August 6th petition, the Commission requests “approval to assess a fee . . . for costs associated with responding to a public records request.” The Commissions states that it seeks to charge a rate of $25 per hour for time spent segregating and redacting records responsive to the request, which is 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 the records requested.” The Commission further explains that it “conducted a search and identified approximately 20,764 documents responsive to this request” and provided Ms. Leboeuf “with a good faith estimate. . . . The basis of this estimate is 2,072.4 hours of staff time, beyond four hours, to review and redact all documents in accordance with the law[.]”

Ruthy Barros SPR24/2228 Page 3 August 13, 2024 In addition to charging for segregation and redaction required by law under Exemption (a) and attorney-client privilege, the Commission argues the following in support of its request to charge for segregation and redaction under Exemptions (c), (d), (f) and (o): Privacy Exemption (M.G.L. c. 4, § 7(26)(c) and (o)) - The documents requested contain personnel and medical information pertaining to specifically named individuals, personal identifying information of MCAD employees and members of the public, such as non-public mailing addresses, social security numbers, email addresses, phone numbers, dates of birth, and other information that are protected by law exempt from disclosure pursuant to the privacy exemption. Given that the documents requested are authored, in part, by two of MCAD’s high-level managers, the documents must also be reviewed and redacted for information concerning employees that relates to performance complaints, evaluations of employees, requests for accommodations, leaves of absences, and discipline of employees. The law compels the MCAD to protect such records from disclosure. . . . Deliberative Process Exemption (M.G.L. c. 4, § 7(26)(d)) – Given that the documents requested are authored in part by two of MCAD’s management team, the documents requested may include inter-agency or intra-agency documents concerning policy and legal matters by the agency that are still in development. The Deliberative Process Exemption exempts such materials from premature disclosure as to not taint the deliberative process. Additionally under Exemption (d) and/or attorney work product, the Commission states the following in regards to segregation and redaction: Some of the records that may be responsive to the request are likely the work product of MCAD attorneys. This work product is subject to the attorney work product doctrine and are exempt from disclosure under the Public Records Law and MCAD regulations to the extent that they consist of materials prepared in anticipation of litigation, fact-related work product that is interwoven with opinions, or fact-related work product that is not yet reasonably completed. Investigatory Materials Exemption (M.G.L. c. 4, § 7(26)(f)) – Given that the documents requested are authored by the MCAD’s Chief of Investigations, Deputy Chief of Investigations, and an Investigator, the documents requested may likely include complainant names and materials related to cases pending before the MCAD that will require redaction under this exemption. The Investigatory Materials Exemption exempts from disclosure investigatory materials that if disclosed would so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. In light of the Commission’s petition, I find the Commission has met its burden to explain how, given the nature of the responsive records, the request could not prudently be

Ruthy Barros SPR24/2228 Page 4 August 13, 2024 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 Commission 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 Commission may assess a fee for segregation and redaction. This office encourages Ms. Leboeuf and the Commission to continue to communicate directly in 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 Commission must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Ms. Leboeuf 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: Denise Leboeuf