Colman Herman v. Massachusetts Convention Center Authority (SPR 20242603)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 23, 2024 SPR24/2603 Kevin Scanlon, Esq. General Counsel Massachusetts Convention Center Authority 415 Summer Street Boston, MA 02210 Dear Attorney Scanlon: On September 16, 2024, this office received your petition on behalf of the Massachusetts Convention Center Authority (Authority) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, the Authority furnished a copy of the petition to the requestor, Colman Herman. Id. On September 1, 2024, Mr. Herman requested “[‘]copies of any and all communications related to the state audit of the Massachusetts Convention Center Authority[’] issued by the State Auditor on August 19, 2024 for the period January 1, 2021 through December 31, 2022.” In an email to this office on September 17, 2024, the Authority confirmed that it seeks to assess an hourly rate of $25 for time spent segregating or redacting records. 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 records. The first prong is whether the request for records was made for a commercial purpose. 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

Kevin Scanlon, Esq. SPR24/2603 Page 2 September 23, 2024 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 September 16th petition, the Authority requests “to waive statutory limits to fees pursuant to 950 CMR 32.06(4)(g).” In addition to charging for segregation and redaction required by law under attorney-client privilege, the Authority provides the following in support of its request to charge for segregation and redaction under Exemptions (c), (d) and/or attorney work product, and (f) of the Public Records Law: An initial reading of Mr. Herman’s request indicates that responsive records will likely contain policy developmental information, investigatory information, attorney-client communications and attorney work product documents. Therefore, the [Authority] must expend time redacting this information that is protected from disclosure under M.G.L., c., 4, sections 7(26) (c), (d), and (f).

Kevin Scanlon, Esq. SPR24/2603 Page 3 September 23, 2024 Under Exemption (c), the Authority states, “[r]esponsive records may contain information about named individuals such as open personnel matters which, if made public, would result in personal embarrassment to the named individuals. There is no prevailing public interest requiring disclosure.” Additionally, the Authority states the following in regards to segregation and redaction under Exemption (d) and/or attorney work product: The request for records will likely contain material that will require redaction under Exemption (d) to the Public Records Law. . . . Given the broad nature of the request, the request will likely capture a number of records concerning on-going non-public policy development within the Authority. This information does not constitute factual studies or reports but is rather recommendations on legal and policy matters found within the ongoing deliberative process within the Authority. Regarding segregation and redaction under Exemption (f), the Authority explains, “[t]he broad request will also likely contain investigatory information that will require redaction . . . .” The Authority further advises, “[t]o the extent the Authority has engaged outside legal counsel to assist with ongoing investigations within the Authority, certain investigatory details may be considered within the responsive records. This information would need to be redacted prior to release.” In light of the Authority’s petition, I find the Authority 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 Authority 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 Authority may assess a fee for segregation and redaction. This office encourages Mr. Herman and the Authority 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 Authority must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Mr. Herman 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).

Kevin Scanlon, Esq. SPR24/2603 Page 4 September 23, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman