Tiley Jones v. Division of Occupational Licensure (SPR 20242759)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 8, 2024 SPR24/2759 Greer Spatz Croxford General Counsel Division of Occupational Licensure 1000 Washington Street Boston, MA 02118 Dear Attorney Spatz Croxford: On October 4, 2024, this office received your petition on behalf of the Division of Occupational Licensure (Division) seeking permission to charge for time spent segregating or redacting responsive records. 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 Division furnished a copy of the petition to the requestor, Tiley Jones of Freeman Mathis & Gary LLP. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On September 13, 2024, Tiley Jones requested the following: [1.] All applications for TPIA certification and/or renewals of TPIA certification, including all cover letters and attachments [;] [2.] All communications from or with PFS concerning manufactured buildings/components by Signature Building Systems of PA, LLC (“Signature Building Systems”), identified by the BBRS/Commonwealth of Massachusetts as MC Number 0175, delivered to and installed at the property owned by [identified individuals] [;] [3.] All communications or [other] documents concerning the BBRS action In the Matter of PFS Corporation d/b/a PFS TECO, TPIA #2, Case Record MBP-21-00018, including but not limited to any Orders to Show Cause, complaints, answers/responses and/or September 12, 2024 Page 2 www.fmglaw.com submissions by PFS and communications between PFS and the BBRS and/or MBP and/or any other department/division of OPSI, including a Consent Agreement in said action effective August, 18, 2023, and any exchange of positions or information [;] [4.] Any and all other complaints and/or administrative and/or disciplinary actions against PFS as TPIA in any other matters involving Signature Building Systems and or any other licensed manufacturer [;] 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

Greer Spatz Croxford, Esq. SPR24/2759 Page 2 October 8, 2024 [5.] All communications concerning the report by [an identified individual], Manager of Inspectional Services/Inspector of Building of the Town of Danvers, Massachusetts, dated December 31, 2020 (“Maloney Report”) including all action in response to [an identified individual’s] report [;] [6.] All communications between PFS and/or Signature Building Systems and OPSI relative to the correspondence by [an identified individual] , Assistant Chief of Inspections/OPSI dated April 5, 2021 concerning [a specified] manufactured/modular home and OPSI’s requests made to both Signature Building Systems and PFS. (This correspondence by [an identified individual] attached the Maloney report dated December 31, 2020 referenced in paragraph 5 above.) [;] [7.] All documents evidencing PFS ceasing acting as TPIA for Signature [Building] Systems from 2005 to the present [.] Petition to assess fees – Agencies A fee shall not 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. 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 a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public 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 understanding 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 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).

Greer Spatz Croxford, Esq. SPR24/2759 Page 3 October 8, 2024 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). Conclusion The Division submitted its petition on October 4, 2024, more than ten business days after receipt of the request. In light of the fact the Division has not demonstrated it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records cannot be granted. 950 C.M.R. 32.06(4)(g). I encourage the parties to communicate to enable the Department to provide records in an efficient and affordable manner. Sincerely, Manza Arthur Supervisor of Records cc: Tiley Jones